Final Order 1

Order Details: Order Below EX 1
Pdf Text: MHMM18-0079916-2023 C. C. No. :- 552/N/2023
IN THE COURT OF THE METROPOLITAN/JUDICIAL MAGISTRATE,
(FIRST CLASS), 71ST COURT, BANDRA, MUMBAI.
ORDER BELOW EXH.1
The applicants have filed the present application under
section 457 of the Code of Criminal Procedure for delivering possession
of the premises bearing Flat No. 6, at Sequeria Villa, First Floor,
Opposite Vidya Nagari Post Office, Kalina, Santacruz (E), Mumbai
400098. (Here in after referred as premises). According to applicants
their grand father was original landlord of the premises. One Vijay
Desai was tenant in the premises. Original landlord has expired on
15/05/1994 bequeathing the building to his two grand sons Jason and
Shane. Thus, applicants are the landlords of the premises.
2. The family of tenant Vijay Desai consisted of his wife
Kumud and two son namely Ashwin and Devesh. Wife of tenant Vijay
Desai expired on 27/03/2005 and Vijay Desai expired on 14/09/2005
and only Mr. Ashwin Desai was used to reside in the suit premises with
Vijay Desai. At the time of his death. Other son Devesh Desai left the
premises and shifted to Bandra (W) and subsequently to Banglore.
3. It is not true to say that Mr. Devesh Desai renounced his
rights over the premises by executing notarized affidavit on stamp paper
dated 23/03/2006. Only Ashwin Desai was living alone in the suit
premises. It is contended that, in the evening of 04/12/2023 the fire
brigade and police were informed, as there was no response of Ashwin
Vijay Desai from the suit premises. The police and fire brigade persons
have open the door by using force and found that, Ashwin Vijay Desai
has died. The Vakola police have conducted the panchnama and the
dead body of Ashwin Desai taken in Ambulance by police officials after
locking the premises.
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4. It is further contended that, since 04/12/2023 the premises
is locked condition and key is with the Vakola police. Other heirs of
Vijay Desai i.e. Devesh relinquished his rights over the premises,
therefore being landlord applicants are entitled to have possession over
the premises. Lastly, it is conducted that, Vakola police be directed to
release the premises in favour of applicants and physical possession of
the same be given to the applicants.
5. Vakola police have resisted application by filing their say at
(Exh.- 2) and contended that, other legal heirs of Vijay Desai ie. Devesh
Desai has never executed any relinquish deed in favour of landlord.
Therefore, he is entitled to have possession over the premises and said
Devesh Desai has made application to police that key of the lock of the
premises should not be given to applicants. Thus, police contended that,
the possession of premises be given to Devesh Vijay Desai.
6. Ld. APP Shri Joshi for state contended that, after sad
demise of Ashwin Desai police have carried out the procedure and
contended that, appropriate order be passed to prevent the breach of
peace.
7. The notice to Devesh Desai came to be issued by RPAD.
However, despite of service of notice Devesh Vijay Shah did not appear
in the proceeding nor he filed his say. The copies of WhatsApp RPAD
receipt is at (Exh.-5to 8)and the track report (Exh.-9) shows that, the
RPAD notice has been served upon Devesh Desai.
8. Ld. Advocate Shri Pandey for applicants submits that, after
sad demise of Ashwin Desai the applicants being the landlord of
premises are entitled to have possession over the premises, Therefore,
direction be issued to Vakola police station that they shall handover the
key of the lock of the premises to applicants.
9. Ld. APP Shri Joshi for state submits that, after sad demise
of Ashwin Desai the police have registered ADR No.148/2023 in respect
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of the said incident. The dead body of the Ashwin Desai has been
removed and put the lock to the premises by carrying out necessary
formalities. Therefore, appropriate order be passed.
10. It is to be noted that, after demise of Ashwin Desai Vakola
police have ADR No.148/2023 and they removed the dead body of
Ashwin Desai and put the lock to the premises. Now it is necessary to
decide whether the applicant’s being landlord to have possession over
the premises or not. It is to be noted that, despite of service of notice of
Devesh Desai did not appeared before the court nor he filed his say
before the court. It is to be noted that, whether Devesh Desai is tenant
or not and whether he is entitled to have possession over the premises is
not a question before this court. It is purely a question of the competent
court having jurisdiction, as per the provision of Maharashtra Rent
Control Act, 1999. Furthermore, despite of notice Devesh has not
claimed the possession of the premises.
11. It is to be noted that, Vakola police have after carrying out
the necessary formalities in respect of ADR No.148/2023 kept lock to
the premises and now being a landlord the present applicants are
claiming the possession of the premises from the police. The applicants
are landlord in respect of the premises and said fact has been came in
the say filed by police at (Exh.-2). In such circumstances I am of opinion
that, subject to the provision of Maharashtra Rent Control Act, 1999 the
present applicants are entitled to have possession of the premises from
Vakola police station. Hence, I proceed to pass following order.
ORDER
1 The application is allowed.
2 Subject to the provision of the Maharashtra Rent
Control Act, 1999 Sr. P. I. of Vakola police station is
hereby directed that, he shall provisionally handover
the possession of the premises in favour of applicants.
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3 It is hereby cleared that, the order of handing over the
possession of the premises is subject to the provision of
Maharashtra Rent Control Act, 1999 and applicants
shall abide by the provision of the said Act.
Date :09/08/2024.
SRD.
Sd/-
(A. B. Jadhav)
Metropolitan/Judicial Magistrate,
(First Class), 71st Court, Bandra, Mumbai.
Dictated on :- 09/08/2024.
Transcribed on :- 09/08/2024.
Checked on :- 09/08/2024.
Signed on :- 09/08/2024.
SRD.
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