Bombay High Court
345 vs The State Of Maharashtra on 11 April, 2014
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
dss 901-wp794.14-wpl707.14-nml239.14.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.794 OF 2014
AM Developers,
A Partnership Firm registered under ]
the Indian Partnership Act, 1932 ]
and having its registered office at. ]
345, Kailash Plaza, Vallabh Baug ]
Lane, Ghatkopar (E), Mumbai- ]
400077 and represented by its ]
Partner Mr. Rajesh Harilal Shah ] .. Petitioner
vs.
1
The State of Maharashtra
Mantralaya, Mumbai-400 032
]
]
through the Government ]
Pleader, High Court Mumbai. ]
2 Municipal Corporation of ]
Greater Mumbai, a Body ]
Corporate incorporated under ]
the Provisions of the Bombay ]
Municipal Corporation Act,1888]
through the Legal Dept. ]
and having office at Mahapalika]
Bhanvan Mahapalika Marg, ]
CST, Mumbai-400 001. ]
3 Municipal Commissioner, ]
Brihan Mumbai Mahanagar ]
Palika, having his office at ]
Mahapalika Bhavan, ]
Mahapalika Marg, CST ]
Mumbai-400 001. ]
4 Assistant Municipal ]
Commissioner (Ward Officer) ]
M-West Ward, M-Ward ]
Municipal Office Buildings ]
st
1 Floor, Sharadbhau Achayra ]
Marg, Chembur, Mumbai-71 ]
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5 The Assistant Engineer ]
Buildings & Factory Dept. ]
M-West Ward, MCGM, having ]
his office at M Ward Municipal ]
Office Buildings, 1st floor, ]
Sharadbhau Acharya Marg ]
Chembur Mumbai-400071 ]
6 Dy. Commissioner of Police ]
(Zone VI), having his office ]
at B-Wing, New Administrative ']
Building, R.C. Marg, Chembur ]
Mumbai-400 074 ]
7 The Senior Inspector of Police,]
Tilaknagar Police Station,
ig ]
Prakash Thorat Marg, ]
Chembur (W), Mumbai-89 ]
8 Chief Fire Officer, Fire ]
Brigade Department, ]
Municipal Office, M-Ward ]
Ghatkopar Mumbai. ]
9 Mohammed Idrish Jafar Ali ]
Unit No.19, Amar Mahal, ]
Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
10 Vasanti Raghu Shetty ]
Unit No.21, Amar Mahal, ]
Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
11 M. H. Wakde ]
Unit No.22, Amar Mahal, ]
Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
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12 Narendra Sonpur ]
Unit No.28, Amar Mahal, ]
Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
13 Mohammed Tabrez ]
Unit No.34, Amar Mahal, ]
Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
14 Babu K. Amin ]
Unit No.35, Amar Mahal,
ig ]
Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
15 Mohammed Parvez ]
Unit No.38, Amar Mahal, ]
Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
16 Alimiya ]
Unit No.39, Amar Mahal, ]
Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
17 Padmakar Kishore ]
Unit No.41, Amar Mahal, ]
Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
18 K.Koragappa Bangera ]
Unit No.43, Amar Mahal, ]
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Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
19 V.Viswanathan Narayanan ]
Unit No.48, Amar Mahal, ]
Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
20 Jasram Gallut ]
Unit No.54, Amar Mahal, ]
Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar,
ig ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
21 Aminabanu & Shaminabanu ]
Unit No.56 & 57, Amar Mahal, ]
Sub-Sector-III, Chembur]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
22 Mukesh Gallut ]
Unit No.59, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
23 Gopal Shetty ]
Unit No.61, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
24 U. M. Kutty ]
Unit No.62, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
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Road No.1, Chembur, ]
Mumbai 400 089 ]
25 Mrs. Ramalingam Nadar ]
Unit No.64, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
26 Haresh Maniar ]
Unit No., Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089
ig ]
27 Ramkishore Bhagwatidin ]
Unit No.81, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
28 Bairagi Suchit Yadav ]
Unit No.82, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
29 Caturi Chothi ]
Unit No.83, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
30 Hitai Dhunmun ]
Unit No.84, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
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31 Niwas Barsati ]
Unit No.85, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
32 Sitaram Dhunmun ]
Unit No.86, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
33 Mohammed Ismail Idris ]
Unit No.87, Amar Mahal,
ig ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
34 Sabhajeet J. Yadav ]
Unit No.93 & 94, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
35 Jayaram Damu Karale ]
Unit No.95, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ]
36 Vasu K. Shetty ]
Unit No.96, Amar Mahal, ]
Sub-Sector-III, Chembur ]
Sector, "D" Pestomsagar, ]
Road No.1, Chembur, ]
Mumbai 400 089 ] .. Respondents
WITH
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NOTICE OF MOTION (LODGING) NO. 239 OF 2014
IN
WRIT PETITION NO.794 OF 2014
M.H. Wakde & ors. .. Applicants.
(org. Respondent Nos.11 to 25)
In the matter between
A.M. Developers .. Petitioner.
vs.
The State of Maharashtra & ors. .. Respondents.
WITH
WRIT PETITION (LODGING) NO. 707 OF 2014
Mahadeo Hari. Wakde & ors. .. Petitioners.
vs.
Municipal Corporation of Greater
Mumbai and ors. .. Respondents.
.....
In WP No.794 of 2014 @ N/M (L) No.239 of 2014
Mr. Ravi Kadam, Senior Advocate, Mr. Venkatesh Dhond, Senior
Advocate, Mr. Rohan Kadam a/w. Mr. Vikram Trivedi, Mr. Sunil
Trilok Chandani, Ms S. Chatterjee, Mr. Bharatkumar Jain i/b M/s.
Manilal Kher Ambalal & Co. for the Petitioner.
Mr. S.U. Kamdar, Senior Advocate with Ms. Trupti Puranik for
MCGM.
Mr. Manish Doshi i/b Kookada & Associates for Intervenors.
Mr. M. A. Sayyed, AGP for Respondent Nos.1,6 & 7.
Ms. Jamila Shaikh for Respondent Nos.9 & 33.
Mr. Moinuddin Khan with Mr. Tushar Kochale for Respondent
Nos.11 to 25.
Ms K.M. Lovely for Respondent No.26
Mr. Ramsuresh Vishwakarma for Respondent Nos.30,31,32.
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In WP (L) No.707 of 2014
Mr. Yusuf Khan with Mr. Altaf Khan i/b Ms Anjali Awasthi for the
Petitioners.
Mr. D.A. Nalawade, GP for State.
Mr. Ravi Kadam, Senior Advocate with Mr. Venkatesh Dhond,
Senior Advocate i/b M/s. Manilal Kher Ambalal & Co. for
Respondent No.3.
Mr. S.U. Kamdar, Senior Advocate with Ms. Trupti Puranik for
MCGM.
CORAM : ANOOP V. MOHTA AND
ig M. S. SONAK, JJ.
DATE: April 11, 2014
ORAL JUDGEMENT (PER ANOOP V. MOHTA, J.) :-
1] The owner built the Amar Mahal Building on plot No.86 & 87
in sub-sector-III at Chembur, Mumbai (The property/premises) in the
year 1956-57, which according to the Municipal Corporation, now is
in the list of dilapidated Buildings (C-1 Category) in their Disaster
Management Plan, 2012. Therefore, admittedly, three notices (the
notices) under section 354 (The section) of the Mumbai Municipal
Corporation Act (MMC Act) issued from time to time, i.e., 11.6.2007,
9.5.2008 and 9.5.2013 to demolish and to vacate, being dangerous
and inhabitable property/building.
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2] There is no dispute that the Petitioner (in Writ Petition No.794
of 2014) is the landlord, owner and developer of the
premises/property. The Respondents are some of the
occupants/tenants. Some of them are the Petitioners in Writ
Petition (L) No.707 of 2014 filed on 13.03.2014.
3] The landlord/owner has prayed to implement the notices' as
the structure/premises is in dangerous and dilapidated condition.
The occupants, however, are objecting to the same on various
grounds, by referring to the various provisions of law which are not
sufficient to divert the undisputed position on record and so also the
effect and purpose of the section.
4] The learned counsel appearing for the Petitioners-
occupants/tenants placed reliance upon various judgments
including case of Lalbhai Tricamlal vs. The Municipal
Commissioner1. After considering the scheme and purpose of the
Section and for it's implementation, it is specified that the premises
should be in ruinous condition or likely to fall or in any way
dangerous to any person occupying, resorting to, or passing by
such structure. That is also subject to a satisfaction of the
1 (1908) 10 BOMLR 821
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Corporation and its officers based upon the material available
with them. The plain reading of the section contemplates and
mandates the Commissioner to remove such structures. The
section itself mandates to remove and/or demolish and/or take
appropriate steps or action against the "dangerous structure".
5] The Respondent-Corporation's satisfaction, therefore, though
based upon various material and/or information, yet some
Respondents/tenants are obstructing and preventing the landlord /
owner from developing the property. Their entitlement, even if any,
as they sought to be contended being a tenant of the premises, is
quite limited. There is no bar under any provision that the owner
and/or landlord cannot develop such property.
6] The Respondent-Corporation, therefore, considering the
position of buildings, has been requesting the landlord/owner and
occupants to take steps for safety of the buildings since 2005.
Whatever may be the reason, but ultimately the Respondent-
Corporation issued first notice on 11.6.2007. The
Petitioner/landlord, therefore, even requested the occupants to
vacate the property as the buildings are in urgent need of repairs.
The permission was also sought to put-up props to support the
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structure wherever necessary and to erect fence on the plot and
put-up cautionary board warning occupants and passersby about
the dilapidated condition of the property. They did not support the
position. Therefore, second notice dated 9.5.2008 was issued by
the Corporation contending that the structure of building is in
dilapidated condition and also called upon them to pull down the
building. The Petitioner/landlord again requested the occupants to
vacate the buildings/property including to the adjacent temporary
shed, outhouse and garages occupants.
7] Based upon some reports obtained by the
Respondents/occupants whereby it is mentioned that the structure
"is safe and sound to bear design load", they refused to vacate the
premises. The disputes/conflicts between the landlord and the
tenants therefore, continued. Various meetings took place, even in
the year 2011 to settle the matter. The Petitioner/landlord as well as
the Respondents-occupants/tenants in fact discussed the terms and
conditions and they want to clarify various doubts so that they can
cooperate and enter into permanent alternate accommodation
(PAA) with the Petitioner/landlord.
8] The landlord/owner, as the settlement could not be proceeded
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further, again requested to vacate the premises as that is necessary
to develop the property by pulling down and demolish the premises
in question. Some of the occupants agreed and even vacated. The
Respondents/occupants-tenants however, resisted to vacate the
premises though expressed their willingness and no objection for
the development. As there was no further progress, the
Respondent-Corporation issued another notice on 9.5.2013, to all
the concerned and directed to pull down the building. The
Petitioner, therefore, addressed a letter and pointed out their
inability to pull down the structure due to various reasons including
'wrongful refusal/ failure of the tenant/occupants to cooperate in the
demolition process by vacating their respective premises/rooms of
the buildings.
9] The Respondent-Corporation directed even to disconnect
electricity supply on 11.7.2013 itself. The Respondent-Corporation
filed a criminal case against the Petitioner/landlord-owner for not
having complied with notice dated 9.5.2013.
Respondents/occupant's No.33 and others filed Suits on 3.9.2011
vide Suit No.3424 of 2013 and 3425 of 2014, which are pending
before the City Civil Court, whereby the prayers are sought to
prevent demolition of their property in question. However, the
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learned Judge not granted any ad-interim relief.
10] The Petitioner/landlord again communicated the position to
the Respondent-Corporation about non-cooperation from the
occupants/tenants and also referred that they would not be
responsible for any loss of the life and danger to the property in the
event of untoward collapse of the said building. The Respondent-
Corporation on 10.10.2013, gave an opportunity to pull down
dilapidated buildings including the adjacent temporary sheds. The
Petitioner therefore in above background, in fact, requested the
Respondent-Corporation to perform their duty to remove such
occupants/tenants from the said premises and to assist the
Petitioner/landlord to pull down the said buildings. The
Petitioner/landlord, therefore, again received a notice on 29.10.2013
to pull down the buildings in question. The Petitioner ultimately in
view of above background, filed this Petition on 13.12.2013 and
prayed mainly to complete the action as contemplated under
Section 354 of the MMC Act, apart from other reliefs.
11] However, during this period, as offered out of 94
occupants/tenants, the Petitioner/landlord has settled with 63
occupants, before filing of the Petition. The Petitioner has also
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settled with other four occupants (Respondent Nos.10,34 and 36)
after filing of the Petition. At pages 602 & 603, the
Petitioner/landlord has given details about occupants of the
premises as well as the occupants of shed and area which they are
offered them, apart from their other terms and conditions. In order
dated 2.4.2014, we have recorded the said statement.
12] The Petitioner/landlord ultimately circulated and put caution
notice about the dilapidated condition of the building on 6.1.2014.
Remainders were also sent to the Respondents to take action.
13] The matter was also listed before the Court from time to time.
Most of the time, it was adjourned for settlement as everybody
concerned including the Petitioner/owner, occupants and shed
occupiers wants to settle the matter knowing fully undisputed
position of the structure as well as its dilapidated condition. Merely
because one report placed by the occupants on record to say that
the building is safe and sound to bear design load, that itself is not
sufficient to overlook the actual and factual position of the buildings
as well as consistent notices issued by the Corporation knowing
fully the effect of not taking action on such dangers structures. 63
occupants have settled the matter. Out of 94, 63 are supporting the
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Petitioner as well as the Respondents. Everybody concerned knew
about the nature and dilapidated condition of the building. The
dispute even if any, raised with regard to the structure by some of
the Respondents/occupants that it is repairable and could have
been repaired just cannot be accepted, at this situation and on the
undisputed position on record. It is even difficult even for the
occupants/Respondents to maintain and/or repair the buildings of
their own, as they have not done till this date, is just not possible for
them to do repairing and it is also not possible to permit them to do
repair on their portion of the premises. When the whole building
itself is in dilapidated condition, one unit or two, just cannot be
retained there by repairing, even if any, as it could not support the
case of the tenants/occupants on any foundation to retain the
buildings and/or not to demolish the buildings.
14] Therefore, all the contentions based upon the pendency of
the Suits as well as by referring to the other provisions of law, in
our view, is of no assistance to the Petitioner/landlord to halt the
project and/or allow the buildings to have its natural death, which
would result into untoward incident apart from the death and
accident of many passers-by including the occupants.
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15] We are dealing with writ jurisdiction. There is substance in the
contention so raised by the learned counsel appearing for the
occupants/tenants that question of facts cannot be gone into the
writ jurisdiction and their suits are pending which will take care of
various aspects of legality and/or illegality of the notices and/or
related action. The undisputed position on record including the
conduct of all these occupants, who otherwise have never objected
to develop the property and on the contrary exchanged even the
draft of settlement, but for want of certain terms and conditions, as
per the occupants, could not be settled. They persisted with such
litigations in spite of adjournments they sought for settlement of the
matter. Their conduct and their own case itself, in our view, destroy
their submissions revolving around the above facts and the
provisions of law, basically when, plain reading of section 354 of
MMC Act itself provides and empowers and mandate the
Commissioner/Respondent to take action once they satisfy with
material with them that the building is in "dilapidated and/or
inhabitable" in "dangerous conditions". The entitlement and/or
dispute even if any of the occupants with the landlord and/or
pendency of any litigation, in no way can be hurdled and/or prevent
the Corporation as well as the landlord/owner from demolishing
and/or taking effective steps to remove the occupants from such
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dangerous building and develop the property in accordance with
law.
16] The learned counsel appearing for the occupants/ tenants
read and referred in support of his contention various judgments i.e.
Lalbhai Tricamala vs. The Municipal Commissioner2, Mihir Yadunath
Thatte vs. State of Maharashtra, through the Secretary 3, Abdul
Razzaq Sunesra v. Municipal Corporation of Greater 4, Shameem
Shah v. Brihanmumbai Mahanagarpalika5 and S. P. Chengalvaraya
Naidu v. Jagannath6.
17] The plain reading of these judgments, in our view, in no way
support the Petitioners in view of above undisputed position on
record. There cannot be any issue with regard to the law so laid
down, but at the same stroke, we just cannot overlook the facts and
circumstances of the present case and so also the conduct of the
Petitioners. We have to consider the principles of the balance of
convenience, equity and irreparable loss, not only for the
Petitioner/owner, but for the people at large also.
2 (1908) 10 Bom L.R. 821
3 2007 (1) All M R 537
4 2013 All M R (6) 297
5 2008 (4) Mh. L. J. 699
6 AIR 1994 (SC) page 853
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18] At this stage, we are inclined to observe that the pendency of
the Petitioners/tenants' Suit, and the reliefs so sought are revolved
around the same notices under Section 354 of MMC Act. They have
also filed one Suit bearing No.265 of 2013 pending these Petitions.
In spite of above, they have filed the present Writ Petition and made
similar averments revolving around the said notices under Section
354 of MMC Act. We are inclined, therefore, to dismiss their
Petitions also on this ground apart from the reasons so recorded
above. We are not here to decide the Suits and the prayers so
made therein. But in view of above admitted position on record and
in view of the prayers so made by the landlord/Petitioner apart from
notices so issued by the Respondent-Corporation under Section
354 of MMC Act and as the submission is made in the interest of
people at large that such building cannot be permitted to stand as it
is and is required to be demolished as early as possible being in
dilapidated condition. Therefore, there is no option but to permit the
Corporation as well as the landlord-owner to take steps in
accordance with law by following the judgments of this Court.
19] Mr. Ravi Kdam, learned senior counsel appearing for the
Petitioner in W.P. No.794/2014 has read and referred following
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judgments :
(i) M/s Whiz Enterprise Private Ltd v. State of Maharashtra and
ors7.
(ii) Tadeshwar Wadi Co-operative Housing Society Ltd v. State of
Maharashtra & ors,8
(iii) Smt. Esther Manickam vs. Municipal Corporation of Greater
Bombay and anr.,9
(iv) M/s. Mehul Realtors Private Ltd vs. Mumbai Municipal
Corporation of Gr. Mumbai & ors.,10
(v) Cosmos Homes India Pvt Ltd and anr vs. The Municipal
Corporation of Greater Mumbai and 11
20] The subject to satisfaction recorded by the Officials about the
dangerous conditions of the building in question cannot be
reexamined again and again at the instance of the occupants in the
present facts and circumstances of the case. The Commissioner is
under mandate to make the provisions workable and required to
take immediate steps.
21] However, it is made clear that so far as the landlord's legal
obligation to provide other occupants/shed owners the alternate
7 Original Side Writ Petition (L) No.28/2009 decided on 30-07-2009 (Bombay
High Court)
8 2013 (3) Bom C.R. 79
9 2013 (6) All M. R. 218
10 Original Side Writ Petition No.1522/2013 decided on 17.02.2014
11 Original Side Writ Petition No.2874 of 2012 decided on 9.12.2013
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accommodation and permanent structures is in no way restricted.
On the contrary, the offers so made and recorded in the order dated
2.4.2014 need to be complied with by the landlord/owner.
22] The another angle in the present matter is landlord and tenant
relationship and the respective rights/obligations of the parties. The
private building and the Corporation buildings are two distinct nature
of building. The Petitioner is owner/builder of the private
premises/property.
ig The contested Respondents are the
occupants/tenants of the respective premises. The change in
Mumbai life with the developing infrastructure, real estate residential
as well as commercial property hard to ignore. The landlord/owner's
right to develop his /her/its property cannot be denied, but it is
subject to control of rules, regulation and the policy. The rights and
the entitlement of the tenant/occupants are equally relevant, but
again governed by the Tenancy Act/policy. The landlord and tenant
relationship are governed by the different statute. The allegation of
fraud and misrepresentation cannot be decided in the present facts
of the case, when except these occupants all majority have been
supporting the case of the Petitioner/Corporation. The tenants,
therefore, are entitled for reoccupation right of equal area
premises/flats/unit after development of the property, if any. There
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landlord's relationship continues so also their respective rights and
obligations, unless evicted by following due procedure of law. The
tenants cannot entitle or claim ownership right for the units/
premises which the owner/developer offered to provide unless
agreed or settled otherwise. The minority occupants/ tenants
cannot oppose redevelopment which is in the interest of all other
tenants/occupants, who have already left the premises.
23]
The offer of the landlord/owner to provide them ownership flat
unit of equal area with amenities and alternate accommodation or
rent/compensation till the reconstruction is over of the new
premises, is nowhere contemplated under the rent/State Act. The
future development in view of Section 354 notices situation, needs
to read cumulatively by all the concerned. The minority
occupants/tenants can not be isolated or permitted to halt/stop the
redevelopment of the property by the landlord/owner/builder. In the
situation like this in view above property situation, and taking overall
view of the matter, we are inclined to observe in the interest of
development rather than halting at the instance of
occupants/tenants, who are also not denying the development of
property and acceptance of he ownership of the premises.
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24] It is made clear that so far as shed-owners are concerned,
the learned senior advocate appearing for the Respondent-
Corporation made statement that notices are only for the
tenements/structures. We are dealing with said notices only.
However, this is in no way prevent the shed owners/occupants to
settle the matter alongwith the other occupants. It is also made
clear that considering the totality of the matter that cannot be even
the reason not to permit the Respondent-Corporation and the
Petitioner/landlord-owner to proceed with the actions so
contemplated under Section 354 of MMC Act and/or to develop the
property in accordance with law.
25] Considering the fact that the occupants are occupying the
premises since so many years and still they are in occupation, we
are inclined to grant them four weeks time to vacate the premises,
failing which the Petitioner/landlord as well as the Respondent-
Corporation are free to take action in accordance with law as
referred above.
26] The learned senior advocate appearing for the Respondent-
Corporation also submitted that there is no reason now to postpone
the demolition action because of ensuing monsoon apart from the
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fact that the building is in dilapidated condition and only these
Respondents are residing and/or not vacating the premises when all
others have already vacated.
27] The occupants/tenants if failed to vacate or settle the matter,
in view of above the Petitioner/landlord and the Respondent-
Corporation are at liberty to take appropriate steps including the
police assistance for the same as recorded in Smt. Esther
Manickam vs. MCGM & anr. (supra), Mehul Realtors Pvt. Ltd.
(supra) and Cosmos Homes India Pvt. Ltd. (supra).
28] Learned counsel appearing for the Petitioners in Writ Petition
(L) No.707 of 2014 prayed for a certificate under Section 134-A of
Constitution of India, which in view of above facts and reasons and
as we are deciding the matter on above undisputed facts, no case
of "substantial question of law" is made out. This prayer is also
rejected. The submissions is also made by the learned counsel
appearing for the Respondents in Writ Petition No.794 of 2014 and
the Petitioners in Writ Petition (L) No.707 of 2014 to stay and effect
the operation of this order. For the reasons so recorded above and
as we have already granted four weeks' time to vacate the
premises, we are not inclined to grant stay of the order as prayed.
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The prayer is accordingly, rejected
29] Pursuance to the order passed by this Court on 2.4.2014, the
statement is made by the learned senior advocate appearing for the
Respondent-Corporation that they have reconnected water supply
and also addressed a letter to the Reliance Energy, who also
connected the electricity. This arrangement should continue till the
occupants/tenants vacate their respective premises/tenement, or
till the implementation of the removal/demolition of the structures.
[Appeal from Order No.1377/2013 - Manjul Darshan Building
Tenants Welfare Association vs. Municipal Corporation of Gr.
Mumbai decided on 21 December 2013 (AS) ]
30] For the above reason, the following order :
ORDER
(i) In Writ Petition No.794 of 2014, the Respondent/Corporation as well as landlord/owner is directed to take steps in accordance with law in pursuance to the notices and if the Respondents/tenants/occupants fail to vacate and/or resist the action of evacuation/demolition, the Corporation may take police aid 24/25 ::: Downloaded on - 23/04/2014 23:32:10 ::: dss 901-wp794.14-wpl707.14-nml239.14.
for giving effect to the notices. Writ Petition is accordingly allowed partly.
(ii) Writ Petition (Lodging) No. 707 of 2014 is dismissed.
(iii) Notice of Motion No. 239 of 2014 is also dismissed.
(iv) There shall be no order as to costs.
(v) Parties to act on the basis of an authenticated copy of this
order.
(M. S. SONAK, J.) (ANOOP V. MOHTA, J.)
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