Order 3

Order Details: Order on Exhibit
Pdf Text: 1 Exh 13 in R.A.D. Suit No. 217/2021
CNR No. MHSCA30004102021
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(BANDRA BRANCH)
Order Below Exhibit 13
In
R.A.D. Suit No. 217/2021
1) Ms Anuradha Anandrao Pai & Anr. Plaintiffs.
V/s.
M/s. Dolphin Build Home Defendant.
Shri Harsh T. Pawar, advocate for the plaintiffs.
Shri Chandrabhan R. Yadav, advocate for the Defendant.
Coram : Shri B.T. Zirape, I/c. Judge.
C.R. No. 40 (B.B.)
Date : 28.07.2022.
Oral Order :
1) This is an application filed by plaintiffs for various interim
reliefs. The property bearing Flat No. 6, 1st floor, Valentino Building,
Near Saint Charles Girls High School, Vakola Village Road, Santactuz
(East), Mumbai 400 055, standing on C.T.S. No. 2049 and 2050 is the
disputed property. This property is hereinafter referred to as the 'suit
premises' for the sake of brevity.
2) In short, the case of the plaintiffs is that late brother of
plaintiff No. 1 namely late Mohan Anandrao Pai was the monthly
tenant of suit premises on a monthly rent of 198/. He was a bachelor	₹
who expired in 21.02.1989 leaving behind him two spinster sisters i.e.
plaintiff No. 1 herein & Kishori Anandrao Pai and two married sisters
i.e. Mrs Savitri Ratnakar Bhat and Pushpa Suresh Shenoy and plaintiff
No. 2 who is nephew of plaintiff No. 1 who are governed by the
provisions of Hindu Succession Act. The defendant is a partnership
firm. Mohammed Shakeel S. Khamker and Walliulahainullah Khan are
the present partners of the defendant firm. The defendant purchased
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the property known as Valentino Building on 05.11.2017 from its
erstwhile ownerlandlord Mr Ivan Valentine Lobo under the registered
deed of conveyance. The suit premises is situated in the said Valentino
building. The agreement of tenancy executed in between Valentine
Pascal Lobo, the father of Ivan Lobo and the brother of plaintiff No. 1
on monthly rent of 198/ in respect of the suit premises on dated	₹
30.04.1967. The tenancy is the heritable and transferable. The
plaintiffs paid rent from upto December 2015. The erstwhile landlord
did not deliberately accepted the rent since from January 2016. The
plaintiffs were always ready and willing to continue to pay the rent.
The plaintiffs with other tenants made several attempts to pay the rent.
3) The erstwhile landlord agreed to develop the property in
consultation of all the tenants/ flat owners/occupiers. However, said
redevelopment project could not materialise. On the basis of FSI, the
erstwhile landlordowner constructed one additional floor comprising
three flats which were sold to Mr Apociano Rebello, Mrs Pamela Rita
Rebello and Mrs Blancy Coutinho under the ownership basis. Mrs
Fabiola Fernandes jointly with Lancelot Fernandes had purchased the
tenement in their occupation from the erstwhile landlord on ownership
basis. There are 13 tenants, 4 ownership flats and 1 tenement on 2nd
floor which is in custody of the erstwhile landlord and his family. In
consultation with the erstwhile landlord, the tenants/ flat owners
decided to appoint M/s. M.B. Andurlekar & Associates, Land Surveyors
who inspected and measured the property flatwise and submitted the
detailed report on 10.08.2013. Again Ajit R. Kudtarkar licensed
engineer & surveyors was appointed by the tenants/flat owners/
occupiers to inspect and measure the property flatwise. He submitted
his report dated 23.09.2019. The list of tenants is annexed to the deed
of conveyance. The said list conflicts with the list showing measurement
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of tenements and tenements occupied by the tenant, flat owners and
occupiers. The list does not mention that there are three ownership flats
on the third floor and one ownership flat on the first floor.
4) Mumbai Municipal Corporation issued the notice dated
18.06.2018 under Section 354 of the Mumbai Municipal Corporation
Act on the basis of structural audit report given by Dolphin Build Home
through its appointed structural auditor Mr Rushabh Surendra
Karnavat dated 10.05.2018 stating that the building in question is in
dilapidated condition, dangerous for occupiers/passersby and it may
collapse as it comes under the category of C1. Thereafter, the plaintiffs
and other tenants and three flat owners filed Writ Petition (L) No.
2841/2018 before the Hon'ble High Court, Bombay and challenged the
said notice. However, said petition was withdrawn by them and
accepted the structural audit report given by the Technical Advisory
Committee (TAC). Thereafter, they vacated their respective
tenements/ownership flats within fortnight. Still, they are maintaining
legal possession, interest and remedies without prejudice to their
rights. Thereafter, Desai & Diwanji, Advocates for the plaintiffs and
other tenants / flat owners / occupiers addressed letter dated
04.04.2019 to Mr Abhishek P. Deshmukh advocate for Dolphin Home
(respondent No. 4 in the Writ Petition (L) No. 2841/2018) requesting
to comply with the guidelines of the Hon'ble High Court, Bombay and
complete the procedure of providing the petitioners permanent
alternate accommodation and temporary accommodation in the vicinity
of the same area or in the alternative to provide rental accommodation.
5) As per the D.C. regulation No. 33(7)(A), each tenant shall
be rehabilitated and given the carpet area occupied by him for
residential purpose in the old building subject to the minimum fixed
carpet area of 27.88 sq.meter (300 sq.ft.) and/or maximum carpet area
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of 126 sq. meter (1292 sq.ft.) free of cost. The said notification is
binding upon the defendant. The plaintiffs through their advocate
addressed a letter dated 12.08.2020 to the defendant informing that as
per the D.C. regulation 33(7)(A), the plaintiffs are entitled for
permanent alternate accommodation admeasuring 300 sq.ft. area (or
more carpet area) in the new building. The copy of the said letter was
also sent to the Chief Engineer, Building Proposal Department (W.S.)
and Assistant Commissioner, H/East Ward.
6) With the help of the contractor, the defendant demolished
the said building on or about 15.08.2020 onwards. The defendant is
reluctant to disclose the information, sanctioned plan, commencement
certificate and IOD which will unfold the truth of area of tenement to
be allotted by the defendant to the plaintiff and other tenants / flat
owners / occupiers of the said building. The plaintiffs are entitled for
permanent alternate accommodation in new building. The plaintiffs are
praying for the direction to the defendant to execute the agreement for
providing alternate accommodation to the plaintiff in new building to
be constructed by the defendant on the said plot. The plaintiffs are
requesting to call upon the defendant to produce before the court the
proposed / sanctioned plan submitted / approved by the Building
Proposal Department of Mumbai Municipal Corporation,
commencement certificate and IDO issued by the Mumbai Municipal
Corporation in respect of the proposed building to be constructed by
the defendant under Order 11 Rule 14 of Code of Civil Procedure. If the
area in report dated 10.08.2013 and 08.08.2019 does not tally with the
area of the flat / tenement shown in the sanctioned / proposed plan in
that event the defendant may be ordered / directed to get the building
plan modified from the Mumbai Municipal Corporation.
7) The plaintiff further requested to restrain the defendant by
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permanent order of injunction from commencing or carrying on the
construction work on the said plot of land unless the defendant
complies with the order and direction of the court, modification of the
building plan. The plaintiff further requested for transit
accommodation in the same vicinity till the building is completed by
the defendant in all respects. After vacating the suit premises, the
plaintiffs have acquired the premises on leave and licence basis of
paying hefty compensation and accommodated her family. Therefore,
the balance of convenience lies in favour of the plaintiff. Tenant and
landlord relationship exists in between the plaintiff and defendant.
8) In the present injunction notice, the plaintiff prayed for
production of documents map, sanctioned plan, etc. by the defendant,
to restrain the defendant from commencing or carrying on
construction work on the said plot and to provide temporary transit
accommodation in the same vicinity as per the D.C. Regulation or pay
the monthly rent / compensation. Finally, the plaintiffs requested for
grant of the application.
9) The defendant resisted the application by filing the reply at
Exh. 15. According to the defendant, the plaintiff approached before
the court with unclean hands and suppressed true and material facts.
There is no relationship of tenant and landlord in between the plaintiffs
and defendant. The plaint does not disclose any cause of action.
Therefore, plaint is liable to be rejected under Order VII Rule 11 of the
Code of Civil Procedure. This court has no jurisdiction to try &
entertain the present suit. The suit is liable to be dismissed for want of
misjoinder of the necessary parties. Such suit lies within the
jurisdiction of Hon'ble City Civil Court, Mumbai. So, it be returned
under Order VII Rule 10 of Code of Civil Procedure. The defendant is
the owner & landlord of the suit premises and the said plot of land
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bearing C.T.S. No. 2049 and 2050 as referred in the deed of
conveyance. After purchase of said plot alongwith building structure
standing thereon, the previous owner / landlord has issued letter of
attornment to the respective tenant of the building. The defendant
have demanded documentary evidence from the tenant showing their
tenancy rights.
10) Mumbai Municipal Corporation has inspected the premises
and prepared the report of structure position and issued the notice to
the respective tenants / flat owners / flat occupiers to vacate the same
as the building is in dilapidated condition and showing in C1 category.
Thereafter, the Writ Petition (L) No. 2841/2018 is filed by the tenants
before the Hon'ble Bombay High Court. It was found that the building
was in dilapidated condition and required urgent evacuation.
Thereafter, the occupants/tenants vacated their premises. The Mumbai
Municipal Corporation pulled down the dilapidated structure /
building. After demolition, the defendant being the owner and
landlord, put up a fencing by patra wall surrounding the said plot of
land for safety purpose. The Mumbai Municipal Corporation
demolished the building. So, the defendant is not liable to pay the
rent. No redevelopment scheme prepared or submitted by the
defendant for redevelopment purpose. The defendant neither prepared
nor submitted any scheme of redevelopment with the concerned
authority at all. There is no question to enter into any agreement.
11) The defendant is not aware that the brother of plaintiff No.
1 was the monthly tenant of the suit premises and he expired on
21.02.1989 leaving behind his 2 unmarried sisters, 2 married sisters
and a son Nitin Ratnakar Bhat of a married sister Savitri Ratnakar Bhat.
The plaintiffs are neither tenant nor having any tenancy rights over the
tenanted premises and have not been accepted as tenant by the
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erstwhile landlord or by this defendant at any point of time. The
defendant denied that the list of tenants are annexed with the deed of
conveyance. No scheme is submitted by the defendant. So, no question
arises for modification as per Section 33(7)(A) of the D.C. Regulation.
The balance of convenience tilts in favour of the defendant. Plaintiffs
are neither tenant. Finally, the defendant requested for dismissal of the
application with costs.
12) From the rival pleadings of the parties, documents
available on record and after hearing the rival submissions of the
parties, the following points do arises for my determination. I have
recorded my findings against each of them for the reasons stated below.
POINTS FINDINGS
1) Whether the plaintiffs proves the prima
facie case in her favour ?
In the Negative.
2) Whether the balance of convenience lies
in her favour ?
In the Negative.
3) Whether plaintiffs proves that the
irreparable loss will be caused to her if
the injunction as prayed is not granted ?
In the Negative.
4) Is the plaintiffs entitled to direct the
defendant to produce the documents
i.e. map, sanctioned plan, other
correspondence etc. ?
In the Negative.
5) Is the plaintiffs entitled for the temporary
transit accommodation or monthly rent/
compensation as prayed for ?
In the Affirmative.
6) What order ? The application is
partly allowed.
R E A S O N S
13) Read the documents available on record. Heard the
learned advocates of both the parties at length.
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As to the Point no. 1 to 3 :
14) All these points are interlinked. So I have taken them
together for my discussion for the sake of brevity. It is settled law that
the tenancy is heritable and transferable right. Therefore, I am of the
view that this transferable and heritable right will not come to an end
by demolishing of the property / structure. Therefore, I am of the view
that the tenant can inherit the tenancy right though the building /
structure is demolished either by landlord or by local authority.
Moreover, as per Section 7(15)(d) of the Maharashtra Rent Control
Act, the tenancy can be transferred on demise of the original tenant.
Therefore, I find no merit in the argument of the learned advocate for
the defendant that the tenancy comes to an end after the demolition of
the building structure.
15) The defendant has denied that the plaintiffs are tenant of
the defendant. The name of brother of plaintiff No. 1 is mentioned at
Sr. No. 6 as a tenant in the list annexed to the deed of conveyance. The
plaintiffs specifically contended that the original tenant is died on
21.02.1989. As per Section 7(15)(d) of the Maharashtra Rent Control
Act, the person residing with original tenant at the time of his death
becomes the tenant after his demise. Thus, the plaintiffs appears to be
the tenant of the Flat No. 6 on the first floor of the Valentino building.
The defendant purchased the plot of land alongwith structure vide
deed of conveyance from erstwhile owner/landlord of the plaintiffs.
Therefore, the plaintiffs appears to be tenant of defendant. Thus, the
tenant and landlord relationship appears on record in between the
plaintiffs and defendant.
16) The plaintiffs are requesting temporary injunction
restraining the defendant from commencing or carrying out the
construction work on the said plot. The learned advocate for the
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plaintiffs invited my attention to the ratio laid down in the case of
Municipal Corporation Greater Mumbai V/s. State of Maharashtra
(Writ Petition (L) No. 1135/2014 decided on 23.06.2014, wherein
the Hon'ble Bombay High Court issued the guidelines and held that,
“The present order will be applicable only in respect
of those buildings which are highly dilapidated and
dangerous and/or classified in Category C1 by the
Corporation, whether owned by a private party or by the
Corporation or any other authority and in respect of
which building, either a notice under Section 354 has
been issued or the Corporation has issued a Letter of
Evacuation to their tenants and/or occupiers of the
buildings........ If it is found after due notice that the
building(s) is in a highly dangerous or in dilapidated
condition, then in that event, the Corporation shall also
make a list of the names of the tenants and/or occupiers
in the said building and the carpet area of the premises in
their respective occupation and possession including the
floor at which the same has been occupied.”...... A copy of
such list will be furnished to the landlord and/or
owner/builder of the said building. The Corporation
thereafter, will issue a notice under section 354 of the said
Act calling upon such tenants and/or occupiers to vacate
the said premises and if such notice under section 354 of
the said Act has already been issued, then in that event
the Corporation will give 7 days' notice to such
tenants/occupiers, copies whereof will be furnished to the
landlord for vacating the said building(s). If such tenant
and/or occupier is not available, the Corporation shall
affix such notice or Letter of Evacuation on any part of
such premises.”..... The rights of the tenants and/or
occupiers and/or owners in respect of the said
premises/property will not be affected by virtue of
evacuation or demolition carried out by the Corporation
of such dilapidated and dangerous building in exercise of
the power under section 354 of the said Act or by virtue of
the fact that the Corporation is the owner of the premises.
Such tenant and/or occupier and/or owner will be
entitled to reoccupy the premises in respect of the same
area after the reconstruction of the building, subject to the
prevalent provisions of law pertaining to redevelopment of
the property or subject to any arrangement or agreement
arrived at by and between such tenants and/or occupiers
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with the owner of the building. Any action of
evacuation/removal/demolition will not affect the inter se
rights of owners if there be more than one owner or there
is a dispute as to the title of the property.”......In case
privately owned buildings are demolished by the
Corporation in exercise of power under Section 354 read
with the present order, then the Corporation shall, while
granting sanction of development, impose a condition in
IOD (Intimation of Disapproval) that no Commencement
Certificate will be issued under section 45 of the MRTP
Act, 1966 unless and until an agreement either providing
Permanent Alternate Accommodation in a newly
constructed building or a settlement is arrived at by and
between the tenants and/or occupiers and the landlord in
respect of the said demolished premises, is filed with the
Corporation at the earliest.”
17) I have gone through the above authority. In view of the
guidelines mentioned in above authority, the rights of tenant /
occupiers or owners are protected. They are entitled to reoccupy the
suit premises in respect of the same area after construction of the new
building. Thus, any action of demolition will not affect the rights of the
tenant. In case of privately owned building is demolished, then the
Corporation shall, while granting sanction of development, impose a
condition in IOD (Intimation of Disapproval) that no Commencement
Certificate will be issued under section 45 of the MRTP Act, 1966
unless and until an agreement either providing Permanent Alternate
Accommodation in a newly constructed building or a settlement is
arrived at by and between the tenants and/or occupiers and the
landlord in respect of the said demolished premises, is filed with the
Corporation at the earliest.
18) Thus, the Corporation will not issue the commencement
certificate in absence of the permanent alternate accommodation
agreement or any other settlement arrived at in between the tenant and
landlord. Therefore, the defendantlandlord cannot commence the
work without the commencement certificate of the Mumbai Municipal
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11 Exh 13 in R.A.D. Suit No. 217/2021
Corporation. Moreover, the defendant specifically contended that he
has not submitted any scheme or proposal or redevelopment with the
Corporation. It has not come on record that the defendant has started
any construction work on the said plot. Therefore, I am of the view that
the plaintiffs has not putforth any prima facie case to restrain the
defendant from commencing or carrying on the construction on the
said plot. The defendant cannot commence the construction work
without the sanctioned plan or approval of the Mumbai Municipal
Corporation. Therefore, I am of the view that no balance of
convenience lies in favour of the plaintiffs. Unless and until the
permanent alternate accommodation agreement is filed before the
Mumbai Municipal Corporation, the Corporation will not issue the
commencement certificate. Therefore, I am of the view that the
plaintiffs will not suffer any irreparable loss, if the temporary injunction
as prayed is refused. Therefore, I am of the view that there is no need
to restrain the defendant as prayed in the application at this stage.
Considering all these circumstances, I answer point No. 1 to 3 in the
negative.
As to the Point no. 4 :
19) The plaintiffs are praying for production of documents by
the defendant including the proposed / sanctioned plan submitted /
approved by the building proposal department by the Mumbai
Municipal Corporation. The defendant specifically contended in his
written statement and reply to the present application that the
defendant has not filed any scheme or proposal before the Mumbai
Municipal Corporation for the redevelopment. Therefore, I am of the
view that the defendant cannot be directed to produce any such
documents. The plaintiffs have not filed any document showing that
the defendant has filed any proposal or scheme for the redevelopment
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over the suit plot. Therefore, at this stage the defendant cannot be
directed to produce any documents as prayed in the present
application. Hence, I answer the point No. 4 in the negative.
As to the Point no. 5 :
20) Learned advocate for the plaintiffs argued that the
plaintiffs are the tenant of the suit premises. The building is demolished
in August 2019. The developer has not submitted proposal to Mumbai
Municipal Corporation. As per the D.C. Regulation 33(7)(A), there is a
time limit to commence the construction within one year and it should
be completed within 5 years. No work has started till today. The
defendant has not provided any alternate accommodation to the
plaintiffs. After the demolition, the defendant is not ready to execute
permanent alternate accommodation agreement. The tenants gave
notice through the advocate to the defendant. Same was not replied.
Therefore, the plaintiffs have filed the present suit. The tenancy cannot
come to an end due to demolition of the building. Therefore, the
plaintiffs are entitled for transit rent or transit accommodation. The
learned advocate for the plaintiffs further invited my attention to the
ratio laid down in the case of M/s. Shaha Ratansi Khimji & Sons V/s.
Proposed Kumbhar Sons Hotel P. Ltd. & Ors. reported in AIR 2014
Supreme Court 2895, wherein the Hon'ble Apex Court held that,
“What has been purchased by the respondent in the
right and interest of owner of the property. The interest of
the appellant as lessee has not been vested with the
respondent. Therefore, we are of the view that the tenancy
of the appellant cannot be said to have been determined
consequent upon demolition and destruction of the
tenanted premises.”
21) On the contrary, the learned advocate for the defendant
vehemently argued that the plaintiffs are not entitled for any relief of
monthly rent. The guidelines issued by the Hon'ble High Court,
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Bombay, are not related to the rent. The original tenant expired.
Therefore, plaintiffs are not entitled for the rent or accommodation.
The defendant has not demolished the building. Mumbai Municipal
Corporation has demolished the building. The tenancy itself is not
clear. No rent receipt is issued by the defendant. The tenants are not
confirming party to the deed of conveyance. The learned advocate for
the defendant invited my attention to the ratio laid down in the case of
Mr Zubai Malik & Ors. V/s. Municipal Corporation Greater Mumbai
& Ors. reported in 2015(1) ALL MR 543, wherein the Hon'ble Bombay
High Court has held that,
“The provisions so read and referred are no way
support their contention that the poor landlord or
landlord who is not in a position to provide alternate
accommodation (temporary or permanent) and/or even
the Corporation and/or in a given case, the State, is
under legal and/or statutory obligation to provide such
alternate accommodation to the tenants/occupants as
landlord is not in a position to provide the same. We are
not concerned with any “improvement scheme” as
referred in those sections and so also no such “clearance”
or “redevelopment plan”. The relationship of private
landlord and tenant is based upon the private contract.
The constitutional and/or statutory obligation relating
to town planning scheme is on different footing. The
issue so raised is totally different. Nothing wrong with
the respective provisions. The submission is made that
“Doctrine of Implied Powers and Authority” need to be
extended as the question is of their right to life as
contemplated under Article 21 of the Constitution of
India......So far as the appropriate guidelines are
concerned, we have also expressed considering the
present scenario of the society, referring to such issues
and basically in dispute between the private landlord and
tenant/occupants. We have also recorded that in other
buildings specifically owned by local authorities and/or
Government and/or cessed buildings. Such
owner/landlords are providing even temporary alternate
accommodation, till they develop their property, but
there is no such provision so far as the private landlord
and/or owner of the property to provide such alternate
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temporary accommodation. The obligation on landlord,
even if any, so imposed under Section 14 read with
Section 16 of the Maharashtra Rent Control Act, 1999
cannot be invoked in this writ jurisdiction for directing
them to provide such temporary alternate
accommodation, if landlord is unable to do so.......We
cannot sidetrack the difficulties of such old legal tenants
of such old chawls/buildings owned by poor
landlord/owner who are unable to commercially exploit
the land property but, as stated to be under obligation to
provide temporary alternate accommodation till the
construction / development of the dilapidated, dangerous
buildings on the land. Such statutory or otherwise legal
tenants / occupants cannot be treated on lower footing
than the unauthorised or authorised slum dwellers /
occupants on Government or local body's land or
property, specially when the urgent situation of
compulsory razing of such dilapidated old buildings crops
up. The State or local authorities are willing to provide
such occupants, dwellers / tenants temporary and/or
permanent alternate accommodation as recorded in
earlier orders (supra). They have permitted various
settlements for the same.”
22) According to the defendant, without declaration of
tenancy, the plaintiffs are not entitled for the rent. In reply, the learned
advocate for the plaintiffs argued that the status of tenant cannot be
disputed at this stage. There is confirmation of the tenancy. The
tenancy is heritable and transferable. The declaration is based on deed
of conveyance. The landlord is not poor. The defendant is developing 3
to 4 properties. The landlord itself is a developer. Therefore, the
authority cited by the defendant is not applicable in the present matter.
23) I have gone through the both the authorities cited by the
parties. In view of the ratio laid down in the case of M/s. Shaha
Ratansi Khimji cited supra, the tenancy cannot be said to have been
determined consequent upon demolition and destruction of the
tenanted premises. This ratio is aptly applicable to the present case.
After demolition of the suit premises, tenancy cannot come to an end.
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So far as the ratio of the case of Mr Zubai Malik & Ors cited supra is
concerned, I am of view that the facts of the present case and the facts
in above cited authority are totally different. The ratio cited in this
authority is totally on different footing. Therefore, I am of view that the
ratio laid down in this authority is not applicable here.
24) The plaintiffs are claiming transit accommodation or
transit rent from the defendant. In view of the foregoing discussion,
plaintiffs appears to be the tenant of the defendant. It is argued on
behalf of the defendant that the suit structure is demolished by the
Mumbai Municipal Corporation. Therefore, the learned advocate for
the defendant argued that the defendant is not liable to pay the transit
rent or transit accommodation. I find no force and substance in the
submission of the defendant. The defendant becomes the owner and
landlord of the building structure and suit building by way of deed of
conveyance. Now the defendant becomes the landlord of the plaintiffs.
The suit building is demolished by the Mumbai Municipal Corporation.
The defendantlandlord cannot refused the tenancy of the plaintiffs. It
is settled law that tenancy is inheritable and transferable right. It
cannot be washed away by demolition of the building structure.
Admittedly, the defendant has not entered into an agreement that the
permanent alternate accommodation with the plaintiffs. He has not
paid any transit rent to the plaintiffs.
25) The right of tenancy cannot come to an end due to
demolition of the suit premises. It is a bounden duty of the defendant
to proved transit accommodation or transit rent to the tenant.
However, the defendantlandlord failed to comply with the same.
Therefore, I am of the view that the plaintiffs are entitled for either
transit accommodation or transit rent from the defendant. As such, I
find no force and substance in the argument advanced by the learned
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advocate on behalf of the defendant. By considering all these
circumstances, I answer point No. 5 in the affirmative.
As to Point No. 6 :
26) In the light of my findings on issue No. 1 to 3, the
defendant cannot be restrained from commencing or carrying out the
construction over the suit plot at this stage. Moreover, the defendant
cannot be directed to produce the concerned document mentioned in
the application. However, in view of the foregoing discussion, the
plaintiffs are entitled for transit accommodation or transit rent.
Therefore, the present application needs to be partly allowed to the
extent of relief to transit accommodation or rent. If the defendant failed
to provide the transit accommodation, then the defendant needs to be
directed to pay the transit rent till final disposal of the suit. Considering
the facts and circumstances of the present case and documents
produced on record, I am of the view that the amount of 10,000/	₹
per month will be just and proper amount towards the transit rent. In
this view of the matter, I proceed to pass the following order :
ORDER
1) The application is partly allowed.
2) The defendant shall provide to the plaintiffs either
transit accommodation of the same standard /
status within the same vicinity or pay the transit
rent @ 10,000/ per month from the date of	₹
this order till the final disposal of the suit.
3) Rest of the prayers are rejected.
4) Costs in cause.
(B.T. Zirape)
I/c. Judge.
Date : 28.07.2022. C.R. No. 40.(B.B.)
Order dictated on : 28.07.2022.
Order transcribed on : 30.07.2022.
Order checked & signed on : 18.08.2022.
/home/steno38/Desktop/CR38sgzfrom 2019/B.T.Zirape/NOTICES BTZ/Orders of CR40 as IC./Dolphin Build Home/Inj.28.7.22/21721RADExh13(Inj)CR4028.7.22.odt
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