Order 2

Order Details: Order on Exhibit
Pdf Text: 1
CNR NO.MHSCA-30006972023
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.19
IN
R.A.E. SUIT NO.312 OF 2023
1. Mrs. Ashmi Atul Parekh and ors. . . Plaintiffs.
Versus
1. Mr. Rajesh Himmatlal Shah and ors. . . Defendants.
Coram : A.S. Pandagle, Judge
C.R.No.32
Date : 30/10/2023.
ORAL ORDER :
1. Perused the application and say filed thereon.
2. This is an application filed by the defendant No.2 to
issue show cause notice against the plaintiffs under the contempt of
Court Act as to why the proceeding shall not be initiated against the
plaintiffs for violated and abusing this Court order.
3. By filing present application it is contended that plaintiff
has preferred interim application seeking status-quo order in the suit
premises against the defendant, this Court was pleased to pass an ad-
interim order by directing the respective parties to maintain the
status-quo in respect of the suit premises till 1/9/2023. The said
order has been extended till date. It is further contended that the
said building was declared dilapidated by the Municipal Corporation
vide its letter dated 27/6/2023 under Section 354 of MMC Act.
4. It is further contended that in consonance of the said
/home/steno32/Desktop/2023-ASP/Order/Oct/E-19-RAE-312-2023.odt
-- 1 of 10 --
2
order/direction declaring the building as dilapidated under Section
354 of MMC Act. The Municipal Authority disconnected the
electricity and water supply vide its letter dated 21/9/2023. It is
further contended that the entire building is not yet vacated by all
the occupants and ground floor is still occupied by the respective
occupants who have running their business from the ground floor. It
is astonishing that the plaintiffs have themselves started demolishing
the defendants structure which itself amount to a breach of the order
of this Court. The plaintiff is well aware that this Court had granted
status-quo order dated 1/9/2023 which is extended time and again,
but the plaintiff having no sanctity to this Court, the plaintiff has
went ahead and demolished the defendants premises and have
themselves breached the status-quo order and committed contempt
of this Court order, therefore, defendant filed present application and
prays show cause notice may be issued against the plaintiffs under
contempt of Court Act for violating and abusing this Court order.
5. On the contrary, plaintiffs by filing reply below Exh.20
resisted the application and contended that the application under
reply filed by the defendant is not maintainable and liable to be
dismissed with compensatory costs on the grounds that the
defendant No.3 has not come with clean hands, suppressed various
material facts and documents and misleading this Court and seeking
favourable order. It is also contended that defendant No.1 and 2
who were jointly occupying the suit premises have already issued
letter dated 12/10/2023 to The Designated Officer (Building and
Factory) of MCGM re-confirming about the vacation of flat No.6 i.e.
the suit premises for demolition as per MCGM orders. It is further
contended that even otherwise, the defendants were mandatorily
required to vacate the suit premises as MCGM’s Technical Advisory
/home/steno32/Desktop/2023-ASP/Order/Oct/E-19-RAE-312-2023.odt
-- 2 of 10 --
3
Committee (TAC) (operating as per the guideline of the Hon'ble
Bombay High Court and Urban Development Ministry of the Govt. of
Maharashtra) has declared the suit property as ‘C-1 category’ and
directed the Designated Officer (Building and Factory) K/West Ward
to take necessary action such that the building should be vacated and
pulled down immediately following due process of law as the said
building is unsafe for habitation and may collapse without giving any
warning thereby endangering the life and property of residents and
passersby.
6. It is further contended that the defendant No.3 has also
misled this Court by suppressing the order of the Hon'ble High Court
in Writ Petition No.18921 of 2023 filed by him. In the said writ
petition he has made averments before the Hon'ble High Court that,
petitioner is not against the demolition, however, the petitioner is
desirous of protecting his interest in the property and it can be done
if the respondents perform their duty as prescribed in the guidelines
dated 25/5/2018. Vide the said writ petition the defendant No.3
was seeking that the BMC should provide area statement and
occupant list to the petitioner which was not done as on that date.
Subsequently MCGM provided the area statement on 14/9/2023.
Even after MCGM complied with the direction of the Hon'ble High
Court of giving area certificate on 14/9/2023, defendant No.3 did
not vacate the flat and stayed on the premises compelling MCGM to
give notice of disconnection of electricity and water supply on
21/9/2023. Ultimately on oral communication by the MCGM
officers that they will be disconnecting electricity and water as per
the notice on 26/9/2023, he vacated the suit premises on
25/9/2023.
7. The defendant No.3 has misled this Court about the
/home/steno32/Desktop/2023-ASP/Order/Oct/E-19-RAE-312-2023.odt
-- 3 of 10 --
4
status-quo order passed by this Court. The plaintiffs have applied to
this Court to restrain the defendants from creating third party rights
in the suit premises and not to part with the possession with third
person. As such defendants are ordered to maintain status-quo in
respect of the suit premises. There are no orders against the
plaintiffs, defendant No.3 has relied upon roznama and wrongly
misinterpreted it. All the flats including ground floor flats were
vacated prior to disconnection of electricity and water supply.
Photographs showing that all the flats are vacant and substantial
demolition of the suit property has been carried out, plaintiff No.3
has started demolishing the entire building as required and ordered
by the MCGM and if the plaintiffs do not demolish the suit building
which contains several flats belonging to the plaintiffs, MCGM may
prosecute the plaintiffs for not complying with the directions of
MCGM. When the status-quo order was passed against the
defendants, plaintiffs’ demolition of dilapidated structure as directed
by MCGM cannot amount to a breach of the order of this Court as
alleged. Plaintiffs are carrying out the directions/orders given by
MCGM vide its letter dated 27/6/2023. It is categorically mentioned
in the Hon'ble High Court’s order dated 19/7/2023 in para 2 that the
defendant No.3 is not against the demolition. MCGM by letter dated
4/10/2023 directed the plaintiffs to demolish the suit building with
proper safety precautions and to start demolition within 7 days from
the receipt of letter. If the plaintiffs fail to carry out the demolition
as per the directions, they will be liable for prosecution under
Section 475(A) of the MMC Act. Substantial demolition of the
building has already been carried out as per the MCGM’s directions.
All the occupants have already vacated their respective flats to
enable demolition of the suit building. The suit property is
/home/steno32/Desktop/2023-ASP/Order/Oct/E-19-RAE-312-2023.odt
-- 4 of 10 --
5
substantially demolished, whereby the building is in more precarious
condition and may cause death, injury and damage to the passersby
and therefore submitted that plaintiffs have not breached any order
of this Court and therefore, submitted that the question of issuing
any show cause notice under contempt of Court Act does not arise,
therefore, submitted that application may be dismissed with costs.
8. From rival contentions of both the parties, following
points arises for my determination and I have recorded my findings
thereon with reasons as under :
Sr.No. Points : Findings :
1. Does the defendant proves that
plaintiffs have committed contempt of
the Court by violating/breached of
status-quo order dated 1/9/2023 ?
. . In the negative.
2. What order ? .. As per final order.
: R E A S O N S :
9. Ld. Advocate for the defendants in advance of argument
relied upon cited case law :-
1] Savio Dsouza & ors. Vs. Municipal Corporation of Greater
Mumbai & Anr. [Writ Petition (L) No.18154 of 2023 decided on
22/8/2023] wherein it is held that, it is settled law both under the
Mumbai Municipal Corporation Act, 1888 and under the
Maharashtra Rent Control Act, 1999, that landlords and property
owners have certain obligations in regard to the suit premises under
tenancies. The landlord tenant relationship does not end because
premises are evacuated for the purposes of redevelopment, or
/home/steno32/Desktop/2023-ASP/Order/Oct/E-19-RAE-312-2023.odt
-- 5 of 10 --
6
because building is too dangerous for continued human occupation.
2] Zubair Malik Vs Municipal Corporation of Greater Mumbai
[Writ Petition (L) No.2371 of 2014 decided on 8/10/2014] wherein
it is held that, the guidelines will not affect any orders passed in
pending proceedings and are not to be read and interpreted to
restrict or permit the Corporation or any party to go beyond the
statutory provisions of law.
3] Central Coalfields Ltd. Vs. Jugnu Construction and ors.
[M.A.No.105 of 2002 decided on 17/12/2002] wherein it is held
that, an injunction is a judicial process whereby the party is required
to do or to refrain from doing any particular act. Its main purpose is
to preserve the subject matter of the suit in status-quo for the time
being. The relief for injunction is an equitable discretionary relief. It
should be exercised in accordance with reason and of sound judicial
principles.
4] C.M. Ganapathi Vs. T.K. Gokulapalan [CMA No.1594 of 1992
decided on 22/6/1994] wherein it is held that, when one party
allows the Court to pass an order and commits mischief depriving
realisation of the fruits of decree by the other party, the Court is
competent to entertain an application under Order 39, Rule 2-A of
the C.P. C.
10. On the other hand, Ld. Advocate for the plaintiffs relied
upon Government Gazette in MMC Act Section 354 and Section 499
and submitted that action taken under Section 354 shall not affect
the inter-se rights of the owners or tenants or occupiers including
right of rehabilitation in any manner. He relied upon cited case law
Tadeshwar Wadi Co-operative Housing Society Ltd. Vs. State of
/home/steno32/Desktop/2023-ASP/Order/Oct/E-19-RAE-312-2023.odt
-- 6 of 10 --
7
Maharashtra and others [2013 (2) Mh.L.J. 681] wherein it is held
that, notices for removal of structure occupied by members of
petitioner-society on the ground of having become dilapidated and
dangerous – petitioner seeking direction to the corporation officials
to take follow-up action on basis of notices – Primary obligation is on
the owner and occupier to act upon the requisition of the corporation
in relation to the structure in ruins – But that does not extricate the
corporation from its duty to remove such structure in public interest.
AS TO POINT NO.1 :-
11. After hearing both sides, gone through the contents of
application and reply filed thereon, also gone through the record of
the proceedings, also gone through the documents filed by both the
parties. On perusal of record it appears that in this suit plaintiffs
filed an application Exh.9 for grant of temporary injunction against
the defendants. In that application after appearance of the
defendants on 1/9/2023 status-quo order is passed against the
defendants that the defendants will not create third party rights in
the suit premises and they are directed to maintain status-quo over
the suit property till next date, the said order time and again
extended till today. Meanwhile the defendants filed application
Exh.17 and present application Exh.19 contending that in existence
of status-quo order dated 1/9/2023 the plaintiffs themselves started
to demolish the entire building and themselves violated the status-
quo order of this Court. On perusal of order passed below Exh.9 it
clearly appears that the said status-quo order is against the
defendants and not against the plaintiffs. The defendants alongwith
application Exh.19 filed notice issued by the MCGM under Section
354 of MMC Act. On the light perusal of the said notice clearly
/home/steno32/Desktop/2023-ASP/Order/Oct/E-19-RAE-312-2023.odt
-- 7 of 10 --
8
appears that the said notice is issued by MCGM on 27/6/2023 to the
owners as well as occupants/tenants also. The said notice is issued
by the MCGM which clearly goes to show that the suit building
structure is in ruinous condition likely to fall and dangerous to any
person occupying residing to or passing by such building and
directed to comply requisition within 7 days. Defendants alongwith
application Exh.19 filed notice dated 21/9/2023 which is in respect
of disconnection of electricity and water connection of dangerous/
dilapidated condition of suit building. From the documents filed on
behalf of defendants itself clearly shows that MCGM has already
issued notice dated 27/6/2023 under Section 354 of MMC Act.
12. As per the said notice, the suit building is in dangerous
condition likely to fall and dangerous to any person occupying
residing to or passing by such way. It also appears that against the
said notice the defendants approached to the Hon'ble High Court by
preferring Writ Petition (L) No.18921 of 2023, the Hon'ble High
Court by the order dated 19/7/2023 disposed off the writ petition
filed by the defendants. It is mentioned in the said order in para 2
that the defendant No.3 is not against the demolition, the copy of the
said order is filed by the plaintiffs alongwith reply Exh.18. Area
certificate is also issued after measurement of the suit premises by
the Officer of MCGM on 14/9/2023. Thereafter MCGM by letter
dated 21/9/2023 intimated about the disconnection of electricity
and water connection and accordingly, MCGM on 26/9/2023
disconnected electricity and water connection of the suit building.
13. On the interim application Exh.9 filed by the plaintiffs
against the defendants, this Court by order dated 1/9/2023 directed
defendants to maintain status-quo over the suit property in respect of
/home/steno32/Desktop/2023-ASP/Order/Oct/E-19-RAE-312-2023.odt
-- 8 of 10 --
9
they will not create third party rights in the suit premises. The said
status-quo order passed below Exh.9 is against the defendants and
not against the plaintiffs. The plaintiffs as per MCGM’s letter dated
27/6/2023 under Section 354 of MMC Act, demolished dilapidated
suit building as per the order of MCGM. It is the obligation upon the
plaintiffs to take effective steps, if the building is declared in C-1
category being in dangerous and dilapidated condition. The action
taken under Section 354 of MMC Act shall not affect inter-se rights
of the owners or tenants or occupiers including right of rehabilitation
in any manner. The plaintiffs acted as per notice issued by MCGM
dated 27/6/2023 under Section 354 of MMC Act, therefore there is
no any violation of status-quo order. Furthermore, the status-quo
order passed below Exh.9 on 1/9/2023 is against the defendants in
respect of the defendants will not create third party rights in the suit
premises and therefore, the defendants are directed to maintain
status-quo over the suit property till date. It clearly appears that the
said order is against the defendants and not against the plaintiffs.
The plaintiffs acted as per the notice of MCGM under Section 354 of
MMC Act.
14. To succeed in present application the defendants will
have to show either there was breach of order of status-quo or there
was intention of the plaintiffs not to honour the status-quo order
right from the beginning. There is nothing on record to show that
the plaintiffs had any intention not to honour the status-quo order
right from the beginning. The status-quo order passed below Exh.9
on 1/9/2023 is against the defendants in respect of maintaining
status-quo specially in respect of defendants will not create third
party rights in the suit property. The plaintiffs have not violated the
/home/steno32/Desktop/2023-ASP/Order/Oct/E-19-RAE-312-2023.odt
-- 9 of 10 --
10
order of this Court, the said order is not against the plaintiffs, the
plaintiffs also not given any undertaking to this Court in respect of
the said order. If there is no violation of status-quo order by the
plaintiffs, no question of contempt of Court arises. Therefore, I
answered point No.1 in the negative and in answer to point No.2, I
proceed to pass the following order.
ORDER
1. Application Exh.19 is rejected.
2. Parties to bear their own costs.
Bandra - Mumbai. ( A.S. Pandagle )
Date : 30/10/2023. Judge, C. R. No.32..
/home/steno32/Desktop/2023-ASP/Order/Oct/E-19-RAE-312-2023.odt
-- 10 of 10 --