Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.4012/19 (LCS No.231
MHCC010110632019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.4012 OF 2019
IN
LONG CAUSE SUIT No.2317/2019
Lakhamshi J. Shah
& 2 Ors. … Plaintiffs
- Versus -
1] Brihanmumbai Municipal Corporation
2] Designated Officer (B & F) T-Ward
3] Designated Officer (B & F) ___Ward
4] Assistant Commissioner, T-Ward
5] R. P. Combines ... Defendants
Appearance :-
Mr. N. A. Gala, Advocate for plaintiffs.
Mrs. Mhatre, Advocate for defendants No.1 to 4/M.C.G.M.
Mr. G. S. Bhat, Advocate for defendant No.5.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 06/06/2023.
-- 1 of 18 --
2 N/M No.4012/19 (LCS No.2317/19)
O R D E R
. This is suit for mandatory injunction directing defendants
No.1 to 4 to comply with the policy guidelines issued by the Honourable
High Court in Writ Petition (Lodging) No.1135 of 2014 and the
guidelines framed in consonance with the directions issued in the said
Writ Petition, for cancellation and termination of Intimation of
Disapproval (I.O.D.) dated 8/2/2017, for mandatory injunction
restraining defendants No.1 to 4 from issuing Commencement
Certificate to defendant No.5 and the plaintiffs have taken out this
Notice of Motion under Order-XXXIX Rule-1 of The Code of Civil
Procedure for mandatory temporary injunction directing defendants
No.1 to 4 to comply with the guidelines and to stay to the I.O.D. and
restraining the Corporation from issuing Commencement Certificate to
defendant No.5.
2] In short, facts of the plaintiffs' case are that the plaintiffs
are the lawful tenants of the building knowing as 'Sukh Sagar' (in short
suit building) bearing flats No.3, 5 and 9. Defendants No.1 to 4 is the
Corporation and its officers whereas defendant No.5 is a partnership
firm carrying on business of development of immovable properties and
is landlord and owner of suit building.
3] It is further stated that the plaintiffs are challenging illegal
demolition of suit building by defendants without taking appropriate
measurements of the tenements in possession of tenements and without
following guidelines issued by the M.C.G.M. in consonance with the
order passed by the Hon'ble High Court in Writ Petition No.1135 of
2014.
-- 2 of 18 --
3 N/M No.4012/19 (LCS No.231
4] It is further stated that one Mr. Mohanlal Arora was the
owner and after his demise his sons and grandsons were the original
owners of suit building. The plaintiffs and other tenants were paying
monthly rent to the owner. When the suit building was sold and
conveyed to defendant No.5 the plaintiffs continued as the tenants of
defendant No.5 and paying rent. It is further stated that defendant No.5
with sole intention to make profit after redevelopment of suit building
purchased it. Defendant No.5 was not interested in carrying out repairs
of suit building and let suit building in dilapidated condition. It is
further stated that on 21/10/2013 the Corporation issued notice under
Section 354 of The Mumbai Municipal Corporation Act (in short the
M.M.C. Act). The plaintiffs and other tenants challenged notice by filing
Long Cause Suit No.4287/2013 and taken out Notice of Motion No.
4371/2013 but the said Notice of Motion came to be dismissed. It is
further stated that the plaintiffs challenged the order of dismissal of
Notice of Motion by filing Appeal From Order No.195 of 2015 and
interim protection was granted which remained in force till 26/11/2018
whereby the Hon'ble High Court dismissed and disposed of the Appeal
From Order.
5] It is further stated that thereafter the Corporation, cut
electricity and water connections of suit building. Then on 22/1/2019
the plaintiffs came to know that defendant No.5 in collusion with
defendant No.1 started illegal demolition of suit building without taking
appropriate measurements of tenements and without intimating the
tenants about their carpet area. It is further stated that the plaintiffs
were not allowed to enter in suit building to collect their valuables. The
locks of the plaintiffs premises were broken and their premises were
entered upon. It is further stated that in view of misuse of powers and
-- 3 of 18 --
4 N/M No.4012/19 (LCS No.2317/19)
violation of policy guidelines the plaintiffs sent letter dated 25/1/2019
to Assistant Engineer, T-Ward directing to stop illegal demolition of suit
building and to follow its guidelines. However, defendant No.3 failed to
stop demolition of suit building and not replied said letter.
6] It is further stated that then the plaintiffs were constrained
to sent letter to Senior Police Inspector to brought to the notice about
illegal demolition of suit building without notice and following
guidelines. Defendant No.5 has not taken steps to enter into agreement
for permanent alternate accommodation, therefore, defendants No.1 to
4 were called upon to provide commencement certificate and I.O.D.
However, the defendants No.1 to 5 in collusion with each others
breached and contravened the guidelines while demolishing suit
building. It is further stated that defendants No.1 to 4 failed to take
steps and not replied letter sent to them. Hence the plaintiffs sent letter
to defendant No.5 and apprised above fact of illegal demolition which
was carried out without taking appropriate measurements and
following guidelines. It is further stated that defendant No.5 replied
said letter through advocate on 3/3/2019 and denied contentions
therein without appropriating any reasonable reasons.
7] It is further stated that defendant No.5 has not provided to
the plaintiffs sanctioned plan depicting flats of the plaintiffs nor copy of
the alternate accommodation agreement. The plaintiffs gathered
information in respect of activities taken by defendant No.5 for
redevelopment of suit building and came to know that defendant No.5
has proposed new I.O.D. under Section 37 (7) (a) of DCR-2034 but it is
not willing to provide benefits which are to be provided to the tenants
of such dilapidated and unsafe buildings. Defendant No.5 intends to
-- 4 of 18 --
5 N/M No.4012/19 (LCS No.231
consume and use all the aforesaid benefits like additional fungible
compensatory area for his personal gains at the cost of the plaintiffs.
8] It is further stated that the plaintiffs came to know that 4A
fact sheet and 4B scrutiny report for I.O.D./CC which was forwarded to
the M.C.G.M. by architect of defendant No.5 has patent illegalities and
it is fraudulent. It is further stated that a completely false and illegal
scenario was portrayed in order to obtain I.O.D./C.C. by stating that no
structure was occupied by existing tenants/owners. More than 7 tenants
were residing in suit building at that time. This shows that there is
patent illegality in 4A fact sheet and 4B scrutiny report.
9] It is further stated that defendant No.5 has asked for
fungible F.S.I. for rehab component in the proposed building which is
without charging premium but it does not want to pass this benefit to
the plaintiffs and wants to utilize it for its own use in the sale
component. It is further stated that defendant No.5 has not provided
plans or agreement for permanent alternate accommodation showing
exact area including tenants fungible area to the plaintiffs. It is further
stated that defendants have not followed guidelines laid down by the
Hon'ble High Court in Writ Petition No.1135 of 2014 and its own
guidelines. It is further stated that defendant No.5 has not taken steps
to enter into agreement for permanent alternate accommodation which
is precondition of I.O.D. and notice under Section 354 of the M.M.C.
Act. It is further stated that defendants No.1 to 4 in collusion with
defendant No.5 issued I.O.D. and thereby violated its guidelines.
Therefore, the plaintiffs filed suit and taken out present Notice of
Motion for temporary injunction.
-- 5 of 18 --
6 N/M No.4012/19 (LCS No.2317/19)
10] Defendants No.1 to 4/M.C.G.M. though appeared but not
filed Written Statement. Hence Notice of Motion is heard without reply.
11] Defendant No.5 resisted suit as well as Notice of Motion by
filing reply-cum-written statement. Defendant No.5 denied all the
contentions in suit as well as Notice of Motion. It is further stated that
the plaintiffs filed Long Cause Suit No.4371/2013 challenging notice
under Section 354 of the M.M.C. Act and this Court dismissed Notice of
Motion for temporary injunction. Even the Appeal From Order filed by
the plaintiffs has also been dismissed by the Hon'ble High Court by an
order dated 26/11/2018.
12] It is further stated that defendant No.5 was always ready
and willing to provide permanent alternate premises in newly
constructed building but the plaintiffs and some other tenants did not
agree for same and defendant No.5 was forced to file suit under Section
16 (1) (i) of The Maharashtra Rent Control Act against the tenants but
the same was withdrawn by defendant No.5 as building was demolished
as it was in dilapidated condition as per order of the Corporation.
13] It is further stated that the plaintiffs are bent upon to
harass defendant No.5 to extort extra area and monetary benefits
contrary to the provisions of The Maharashtra Rent Control Act. It is
further stated that the plaintiffs are seeking mandatory order in terms of
judgment of the Hon'ble High Court passed in Writ Petition No.1135 of
2014 however, the Corporation has followed guidelines. There is no
question of passing mandatory directions against defendants No.1 to 4.
It is further stated that the plaintiffs have made false and baseless
allegations of fraud against defendant No.5 without any particulars. It is
denied that suit building has illegally been demolished. It is further
-- 6 of 18 --
7 N/M No.4012/19 (LCS No.231
stated that suit building has been demolished by following guidelines
framed by the M.C.G.M. and the guidelines laid down by the Hon'ble
High Court ion Writ Petition. It is denied that defendant No.5 purchased
suit building with sole view to make profit out of redevelopment. It is
denied that suit building was not maintained properly and the
Corporation has issued notice under Section 354 of the M.M.C. Act.
14] It is further stated that all the tenants of suit building have
vacated their respective room much prior to demolition of suit building.
It is further denied that the tenants have tried for settlement and
requested for permanent alternate accommodation but defendant No.5
did not pay any heed to it. It is further stated that partner of defendant
No.5 with advocate have met with Mr. Anil Gada and the tenants but
the matter could not be resolved.
15] It is denied that defendant No.5 has not taken any steps to
enter into agreement for permanent alternate accommodation and not
responded to notice given by the plaintiffs. It is denied that defendant
No.5 is required to provide temporary alternate accommodation or rent
for temporary alternate accommodation during the period of
construction of new building. There is no provision to give inspection of
the plan approved by the M.C.G.M.
16] It is denied that defendant No.5 has resorted to fraudulent
and illegal tactics to obtain I.O.D. The landlord has to provide
equivalent area in newly constructed building on tenancy basis. There is
no provision to provide premises on ownership basis unless the benefits
are taken under Section 33 (6) of the DCPR-2034. Defendant No.5 is
not availing the benefits under DCPR-2034 and as such question of
providing permanent alternate accommodation on ownership basis at
-- 7 of 18 --
8 N/M No.4012/19 (LCS No.2317/19)
all does not arise. It is further stated that the plaintiffs and other tenants
have never disputed correctness of measurements mentioned in 4/A
facts and sheet and scrutiny report 4/B. It is denied that actual area of
the plaintiffs is 515 Sq. Ft. but it is shown as 506 Sq. Ft. by defendant
No.5 in the suit filed in Small Causes Court. It is denied that the actual
carpet area of the plaintiff No.2 is 627 Sq. Ft. and the plaintiff No.3 is
515 Sq. Ft. of the plaintiff No.3.
17] It is further stated that the plaintiffs have not made out
prima facie case. Balance of convenience does not lie in their favour.
They have suppressed material facts and not come to the Court with
clean hands. The plaintiffs have not given notice under Section 527 of
the M.M.C. Act. On these grounds, defendant No.5 prayed for dismissal
of Notice of Motion.
18] The plaintiffs filed rejoinder affidavit and denied
contentions in Written Statement. Defendant No.5 also filed additional
affidavit on 2/2/2023. The plaintiffs also filed additional affidavit on
6/10/2022.
19] Points for determination alongwith findings thereon for the
reasons are as under :-
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiffs have made out
prima facie case ? . . . No.
-- 8 of 18 --
9 N/M No.4012/19 (LCS No.231
2) Whether balance of convenience lies
in favour of plaintiffs ? . . . No.
3) Whether plaintiffs would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No. 1 TO 3 :-
20] Learned advocate for the plaintiffs submitted that the
plaintiffs are the tenants of 'Sukh Sagar' building which was originally
owned by one Arora family. Then the defendant No.5/firm purchased
suit building with sole intention to redevelop and make profit from its
redevelopment. It is further submitted that defendant No.5 has not
maintained building in good condition and, therefore, the Corporation
has issued notice under Section 354 of the M.M.C. Act. The tenants,
including the plaintiffs, have challenged said notice by filing a suit.
However, this Court has dismissed Notice of Motion. Appeal From Order
filed against the said order has been dismissed by the Hon'ble High
Court. However, defendants No.1 to 4/i.e. M.C.G.M. and its officers
without following the guidelines laid down by the Hon'ble High Court
in Writ Petition No. 1135 of 2014 and its own guidelines issued I.O.D. It
is further submitted that as per clause No.1.15 of the guidelines the
Corporation cannot issue I.O.D. or sanction for redevelopment unless
and until an agreement, either providing a permanent alternate
accommodation in newly constructed building or a settlement is arrived
-- 9 of 18 --
10 N/M No.4012/19 (LCS No.2317/19)
at by and between the tenants and/or occupier and the landlord. So
also Commencement Certificate cannot be issued. However, in
contravention of the guidelines the Corporation issued I.O.D. and C.C.,
therefore, the plaintiffs constrained to file this suit and taken out Notice
of Motion.
21] It is further submitted that defendant No.5 has undertaken
to redevelop property under 33 (7) of the D.C.P.R. and, therefore, it has
to provide permanent alternate accommodation on ownership basis.
However, defendant No.5 intents to consume all the benefits like
additional fungible area at the cost of the plaintiffs. It is further
submitted that the Corporation issued I.O.D. in contravention of its own
guidelines and without verifying whether defendant No.5 entered into
agreement for permanent alternate accommodation. If temporary
injunction, as prayed, is not granted the plaintiffs will be deprived their
right of having permanent alternate accommodation. Therefore, Notice
of Motion in terms of prayer clauses be made absolute.
22] In support of submissions learned advocate for the
plaintiffs relied on the judgment of the Hon'ble Bombay High Court in
Surendra Vishnu Masurkar Versus Municipal Commissioner and Another
(2019 SCC OnLine Bom 13116) in which it is held that, “
The MCGM is
unable to show the provision under which the Executive Engineer of the
MCGM is empowered to waive the I.O.D. conditions and/or the policy
of the MCGM and it certainly cannot accept the mere allegation of non-
cooperation made against a tenant by a Landlord/ Developer and waive
an important condition of the guidelines”. It is further held that,
“Issuing a Commencement Certificate by waiving an important
condition in the I.O.D. which is made mandatory in the Order passed by
-- 10 of 18 --
11 N/M No.4012/19 (LCS No.231
this Court dated 23rd June, 2014 in Writ Petition (L) No.1135 of 2014
and the said Policy of the MCGM, by accepting a mere statement made
by the Advocate for the Landlord/Developer that the
Landlord/Developer will reserve a flat admeasuring 250 sq. ft. for being
allotted to the tenants and the Landlord/Developer is ready to handover
the flat admeasuring 250 sq. ft. to the MCGM for being allotted to the
tenants and by delineating the flat on the sanctioned plan which would
be allotted to the tenants, all without the knowledge and behind back of
the tenants, is in gross violation of the protection provided to the
tenants under the I.O.D. conditions and in the said Policy of the
MCGM”.
23] On the other hand, learned advocate for defendant No.5
submitted that suit as well as Notice of Motion is liable to be dismissed
at the threshold as this Court has dismissed Notice of Motion as well as
the Hon'ble High Court dismissed Appeal From Order dismissing Notice
of Motion in suit challenging notice issued under Section 354 of the
M.M.C. Act. It is further submitted that suit building was in dilapidated
condition and same has been demolished by the Corporation as per the
guidelines. It is further submitted that defendant No.5 is ready and
willing to provide permanent alternate accommodation in the newly
constructed building to the tenants as per the law. However, the
plaintiffs with a view to extract more area and money filed this suit. It is
further submitted that the plaintiffs want that defendant No.5 shall
provide permanent accommodation in new building on ownership basis
which is contrary to the law and the provisions of the Maharashtra Rent
Control Act and in order to pressurize defendant No.5 and to stall
redevelopment process of suit building the plaintiffs filed this suit. It is
further submitted that out of 17 tenants 9 tenants have already given
-- 11 of 18 --
12 N/M No.4012/19 (LCS No.2317/19)
consent for redevelopment and, therefore, in such circumstances,
issuance of I.O.D. also cannot be said to be illegal.
24] It is further submitted that defendant No.5 had sent draft
agreement for alternate accommodation to the plaintiffs. However, they
have not responded and not entered into agreement for permanent
accommodation. It is further submitted that defendant No.5 has
reserved flats to be given to the plaintiffs as permanent alternate
accommodation in newly constructed building. Learned advocate for
defendant No.5 tendered a pursis below exhibit-7 showing list of
existing carpet area of the plaintiffs and area of the new flats with floors
and number of flat reserved for the plaintiffs.
25] Learned advocate for defendant No.5 submitted that
defendant No.5 is providing area to the plaintiffs more than the existing
area in their possession. Learned advocate for defendant No.5 relied on
the judgment of the Hon'ble High Court in the matter of Raj M. Ahuja &
Anr. Versus The Municipal Corporation of Gr. Mumbai & Anr. (Writ
Petition No.5130 of 2022) in which the Hon'ble High Court held that
clause No.1.15 of the 2018 Guidelines for declaring private and
municipal buildings as 'C1' category (Dangerous, Unsafe) do not
mandate consent to be obtained of from all (100%) tenants/occupants,
as consent of 51% to 70% of the occupants/tenants of the building, as
applicable to the proposals made under the relevant regulations DCPR-
2034 as noted above, shall amount to sufficient compliance for
processing development/redevelopment, for a commencement
certificate to be issued including in respect of buildings covered under
Section 354 of the M.M.C. Act. On the basis of this submission learned
-- 12 of 18 --
13 N/M No.4012/19 (LCS No.231
advocate for defendant No.5 submitted that the plaintiffs have not
made out
prima facie case for grant of injunction.
26] On the contrary, defendant No.5 is ready and willing to
provide permanent alternate accommodation and ready to enter into
agreement on tenancy basis as per law. Therefore, the plaintiff is not
entitled for temporary injunction as prayed. It is further submitted that
if temporary injunction is granted the redevelopment project would be
stalled causing prejudice to the right and interest of other tenants who
have vacated their tenements. He further submitted that interest of the
minority tenants will not prevail over rights of the majority tenants who
have consented for redevelopment. He further submitted that the rights
of the plaintiffs will be protected. On these submissions, learned
advocate for defendant No.5 prayed for dismissal of Notice of Motion.
27] The plaintiffs have taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of the C.P.C. Plaintiffs
are seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a
prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
28] The plaintiffs have filed this suit for perpetual injunction
-- 13 of 18 --
14 N/M No.4012/19 (LCS No.2317/19)
and taken out this Notice of Motion. It is not disputed that the plaintiffs
are tenants of suit building and defendant No.5 is the landlord. It is not
in dispute that notice under Section 354 of the M.M.C. Act has been
issued as suit building was in dilapidated conditions and same has been
demolished as it was deteriorated and unsafe. It is contention of the
plaintiffs that defendant No.5 in collusion with defendants No.1 to 4
obtained I.O.D. fraudulently. It is contented by the plaintiffs that as per
clause 1.15 of the guidelines of the M.C.G.M. issued inconsonance of
directions of the Hon'ble High Court, the M.C.G.M. shall not issue I.O.D.
unless and until tenants and landlord have entered into an agreement
for permanent alternate accommodation and there is settlement
between them. However, defendant No.5 has not entered into
agreement for alternate accommodation and inspite of that the
M.C.G.M. issued I.O.D.
29] The main grievance of the plaintiffs is that defendants No.1
to 4 and its officers issued I.O.D. in contravention of the guidelines of
the Corporation in respect of permission for redevelopment of
demolished building. As per clause 1.15 of the guidelines the
Corporation shall not issue I.O.D. or sanction for redevelopment unless
and until an agreement, either providing a permanent alternate
accommodation in newly constructed building or a settlement is arrived
at by and between the tenants and/or occupier and the landlord,
Commencement Certificate cannot be issued.
30] It is contention of the plaintiffs that defendant No.5 has not
entered into agreement providing permanent alternate accommodation
and in absence of agreement providing permanent alternate
accommodation the Corporation has issued I.O.D. and commencement
-- 14 of 18 --
15 N/M No.4012/19 (LCS No.231
certificate. It is contention of defendant No.5 that 9 out of 17 tenants
have given consent for redevelopment. Learned advocate for defendant
No.5 filed a pursis alongwith list of the tenants who have given their
consent or redevelopment. On perusal of list, it appears that 9 out of 17
tenants have given their consent for redevelopment. Learned advocate
for defendant No.5 submitted that vide letter dated 10/6/2022
defendant No.5 has intimated the plaintiffs that it is ready to provide
alternate accommodation to the tenants including the plaintiffs on
tenancy basis with plus or minus 5% variation under the provisions of
The Maharashtra Rent Control Act and sent draft of permanent
alternate accommodation agreement to be executed. However, the
plaintiffs have not entered into agreement for permanent
accommodation.
31] The defendant No.5 has produced on record list showing
existing area in possession of the plaintiffs and area to be allotted to the
plaintiffs in newly constructed building. It appears that the defendant
No.5 agreed to provide area to the plaintiffs more than in their
possession. The defendant No.5 has also produced copy of notice reply
with draft of agreement for permanent alternate accommodation sent to
the plaintiffs.
32] Hon'ble High Court in Raj M. Ahuja & Anr. Versus The
Municipal Corporation of Gr. Mumbai (supra) held that as per Clause
1.15 of the 2018 Guidelines issued by the MCGM declaring private and
municipal buildings as 'C1' category consent of 51% to 70% of the
occupants of the building shall amount to sufficient compliance for
processing development proposal or commencement certificate
including building covered under Section 354 of the M.M.C. Act.
-- 15 of 18 --
16 N/M No.4012/19 (LCS No.2317/19)
33] In the case on hand, out of 17 tenants 9 tenants have given
their consents. Moreover, the defendant No.5 has agreed that the
tenants will be provided permanent alternate accommodation in lieu of
their original premises on tenancy basis. The main grievance of the
plaintiffs is that without entering into agreement for permanent
alternate accommodation to the tenants the Corporation has issued
I.O.D. and C.C. in violation of the guidelines. However, the Hon'ble High
Court in the case of Raj M. Ahuja & Anr. Versus The Municipal
Corporation of Gr. Mumbai & Anr. (supra) held that consent of 51% to
70% of the occupants/tenants of the building, as applicable to the
proposals made under the relevant regulations DCPR-2034 as noted
above, shall amount to sufficient compliance for processing
development/redevelopment, for a commencement certificate to be
issued including in respect of buildings covered under Section 354 of
the M.M.C. Act.
34] In the case on hand, it is contention of defendant No.5 that
out of 17 tenants 9 have given consent for development. It is settled
that interest of minority occupants/tenants will not prevail over rights
of the majority tenants who have consented for redevelopment and such
persons cannot delay redevelopment work. Delay in completion of
project closely affect rights of the other tenants as well as causes
prejudice to the developer. Therefore, in view of the observations of the
Hon'ble High Court in Raj M. Ahuja & Anr. Versus The Municipal
Corporation of Gr. Mumbai & Anr. (supra) I find no substance in the
contention of the plaintiffs that without consent of all the tenants or
settlement with all the tenants issuance of I.O.D. and C.C. by
defendant/B.M.C. is not illegal.
-- 16 of 18 --
17 N/M No.4012/19 (LCS No.231
35] I have gone through the judgment relied by the plaintiff in
Surendra Vishnu Masurkar Versus Municipal Commissioner and Another
(supra). However, facts of the case on hand and facts of the judgment
relied by the plaintiffs are not identical. Hence with due respect the said
judgment is not helpful to the plaintiff. Hon'ble Bombay High Court in
the case of Pannalal Nagar Tenant Welfare Association V/s Municipal
Corporation of Greater Mumbai & Ors. [Writ Petition (L) No.10676 Of
2021] observed that, “
The grievances of the non-cooperative
tenants/occupants in respect of their area entitlement and eligibility,
can aways be considered at a later stage. The project of re-development
cannot be stalled only because a miniscule number of
tenants/occupants are not agreeable to give their written consent unless
the issue of their eligibility or area which they are entitled to, is settled”.
36] In the case on hand, grievance of the plaintiffs as to their
entitlement and eligibility of area is to be decided at later stage. In such
circumstances, interim relief as prayed cannot be granted. The main
grievance of the plaintiffs is that the defendant No.5 withheld relevant
information and made impossible to the plaintiffs to enter into
agreement for permanent alternate accommodation. However, the
plaintiffs have not shown what kind of information has been withheld
by defendant No.5 and how it is made impossible for them to enter into
agreement for alternate accommodation. On the contrary, it appears
that the defendant No.5 sent draft of agreement for permanent
alternate accommodation to be provided to the plaintiffs on tenancy
basis in a newly constructed building. The plaintiffs have limited rights
under the tenancy act. They are entitled for permanent alternate
accommodation as per the provisions of The Maharashtra Rent Control
-- 17 of 18 --
18 N/M No.4012/19 (LCS No.2317/19)
Act. The defendant No.5 is ready and willing to provide permanent
alternate accommodation to the plaintiffs as per law. In such
circumstances, I am of the opinion that the plaintiffs have not made out
prima facie case. Balance of convenience does not tilt in their favour
and if the injunction is refused no irreparable loss or injury would be
caused to them. Accordingly, I answer points No.1 to 3 in the negative
and in answer to point No.4 proceed to pass following order :-
O R D E R
Notice of Motion No.4012/2019 is dismissed.
Date : 06/06/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
17/06/2023 05: 00 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 06/06/2023
ORDER Typed on 15/06 and 16/06/2023
ORDER signed by P.O. on 17/06/2023
ORDER uploaded on 17/06/2023
-- 18 of 18 --