Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No. 4305/2019
in Suit No.2818/2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No. 4305 of 2019
(CNR NO. MH CC010118002019)
In
SUIT No. 2818 OF 2019
Mr. Vishal Shailesh Makwana
Through C.A. Dawood S.K. Ismail ....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.2,
Building No.136, D'Lima Street, Mumbai and directing defendants to
allot the plaintiff permanent alternate accommodation in the
reconstructed building mentioned in Para No.18 of the plaint and for
restraining defendants, their agents employees, servants from removing
-- 1 of 8 --
2 Notice of Motion No. 4305/2019
in Suit No.2818/2019
the plaintiff and his family members from the suit premises i.e Room
No.60, Chawl No.9, Antop Hill, Wadala Transit Camp, Mumbai.
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 Mr. Dawood
S.K. Ismail.
4. Heard learned Advocate for plaintiff and defendant Nos.1
and 2 at length.
-- 2 of 8 --
3 Notice of Motion No. 4305/2019
in Suit No.2818/2019
5. Following points arise for determination. Findings against
each of them alongwith reasons are stated as below.
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 ?
To the Defendants
4. What Order ? As per final order
As to point No.1
6. It is not disputed that Dawood S.K. Ismail was original
tenant of Room No.2, Building No.136, D'Lima Street, Mumbai (the
original tenanted suit premises). It is also not disputed that the
Dawood S.K. Ismail 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 02.10.1979, the defendants as per the MHADA Act
issued allotment letter and alloted transit room to the original tenant i.e.
Room No.60, Transit Camp Chawl No.9, Wadala, Mumbai in lieu of
original tenanted premises.
-- 3 of 8 --
4 Notice of Motion No. 4305/2019
in Suit No.2818/2019
7. It is averred by plaintiff that on 02.06.2017 the original
tenant Mr. Dawood S.K. Ismail executed General Power of Attorney,
Affidavit and Indemnity Bond for transferring and assigning tenancy
right, title and interest in respect of old tenanted premises in favour of
plaintiff. On 12.07.2017, the defendants addressed letter to the original
tenant to vacate the transit camp Room No.60, Transit Camp Chawl
No.9, Wadala, Mumbai.
8. According to plaintiff the original tenant addressed the letter
to the defendants for allotment of another transit accommodation in lieu
of old tenanted premises as Room No.60, Transit Camp Chawl No.9,
Wadala, Mumbai was in dilapidated condition. Defendant No.2 put
proposal before the Executive Engineer/E1, 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 Room9/60 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 belonging of plaintiff in Room No. 258, Chawl
No.34, Wadala Transit Camp, Mumbai400 037 without giving any
allotment letter. Vide order dated 11.03.2019, defendants alloted
temporary transit accommodation at New M.H.B. Colony, Gorai Road,
Building No.9/C, Gala No.307 and directed to vacate Room No.9/60.
On perusal of said order dated 11.03.2019, it reflects that for the
purpose of redevelopment the said order was issued and the plaintiff was
alloted Gala No.307 at Gorai Road. Plaintiff has relied on the
Government Resolution dated 13.09.2019. The recitals of the said
-- 4 of 8 --
5 Notice of Motion No. 4305/2019
in Suit No.2818/2019
resolution reveals that the original tenants who are shifted in transit
accommodation are entitled for accommodation in the building which is
redeveloped.
9. As per the pleading, the plaintiff has came up with the case
that on the basis of P.O.A. he obtained the possession of transit
tenement. The notice dated 27.09.1978, was issued to Dawood S.K.
Ismail the original tenant. Thus, no other document filed on record by
plaintiff to substantiate his contention that he is in possession of transit
quarter 9/60 or Room No.258. Though, P.O.A. was executed on
02.06.2017 in favour of plaintiff, he has not given any explanation as to
why subsequent correspondence to defendants was made by the original
tenant when there is specific clause (3) in P.O.A. empowering the
plaintiff to sign, make and present any application, petition or otherwise
on behalf of original tenant in respect of old room premises/vacation
notice/transit accommodation.
As per the documents relied on behalf of plaintiff, he has already
been alloted Gala No.307 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 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.
As to point No.2 and 3.
10. So far as balance of convenience and irreparable loss is
-- 5 of 8 --
6 Notice of Motion No. 4305/2019
in Suit No.2818/2019
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.9/60 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 No.2 and 3 are answered accordingly.
As to point No.4
11. 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. 4305/2019 is dismissed.
2) Notice of Motion No. 4305/2019 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 : 26.11.2019
-- 6 of 8 --
7 Notice of Motion No. 4305/2019
in Suit No.2818/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
27.11.2019 1.15 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 26.11.2019
Order uploaded on 27.11.2019
-- 7 of 8 --
8 Notice of Motion No. 4305/2019
in Suit No.2818/2019
-- 8 of 8 --