Bombay High Court
Palash Corporation And 3 Ors vs Maharashtra Housing And Area ... on 4 July, 2019
Author: K.R.Shriram
Bench: K.R.Shriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY AND ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO.1589 OF 2019
IN
SUIT (L) NO.736 OF 2019
Palash Corporation & Ors ..Plaintiffs
Vs.
Maharashtra Housing & Area Development
Authority & Ors ..Defendants
Mr. Dinyar Madon, Senior Advocate a/w Dr. Birendra Saraf, Mr. Karl
Tamboly, Mr. Rohan Sawant and Ms. Kausar Banatwala I/b Tushar Goradia
for Plaintiff/Applicant
Ms. Manisha Jagtap for Defendant Nos. 1 and 2;
Mr. Ravi Kadam, Senior Advocate I/b S. G. Reddy for Defendant No. 4;
Mr. Vikrant Deshmukh I/b P. S. Legal for Defendant Nos. 5 and 6;
Mr. Sagar Patil a/w Mr. Dadasaheb Shingade for MCGM.
CORAM : K.R.SHRIRAM, J.
DATE : 4th JULY 2019 P.C.:
1 Plaintiffs have, at this stage, moved for urgent ad-interim relief in terms of prayer clause (b).
2 Plaintiffs claim to be the tenants of a non-residential premises within a plot of land which can be called Pardiwala Chawl premises or the said property. Plaintiffs claim to have become tenants pursuant to an Agreement of Assignment of Tenancy Rights dated 8 th February 2007.
Defendant no.4 acquired rights to the said property from defendant no.7 and has undertaken development of the same under Regulation 33(7) of the Development Control Regulations for Greater Mumbai, 1991. There are 170 tenants on the property.
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3 Partners of defendant no.7, who sold the said property to
defendant no.4 are family members and/or known acquaintance of partners of plaintiff nos.1 and 2. Plaintiff nos.3 and 4 are partners of plaintiff nos.1 and 2 and are also partners in defendant no.7. Defendant no.2 had issued its no objection certificate dated 6th September 2010 in favour of defendant no.7 for re-development of the said property. Alongwith the said NOC, defendant no.2 had issued a certified list of tenants / occupiers. 4 Defendant no.7 by a duly registered Deed of Conveyance dated 4th January 2017 sold, transferred and/or conveyed the said property to defendant no.4. The Deed of Conveyance dated 4 th January 2017 contained a list of tenants / occupiers and plaintiff nos.1 and 2 are listed in the said list as tenants. It is also alleged in the plaint that subsequently, defendant no.4 sent a draft of the alternate accommodation agreement to plaintiffs, which has not been executed. It is plaintiffs case that without executing the alternate accommodation agreement, defendant no.4 should not be allowed to demolish the structure of plaintiffs within the Pardiwala Chawl premises / the said property and consequently be restrained from commencing and carrying out development work on the said property. 5 Mr. Kadam appearing for defendant no.4 in no uncertain terms called plaintiffs as extortionists. Mr. Kadam stated that plaintiff nos.3 and 4 who are also partners of defendant no.7 and who sold the entire Pardiwala Chawl premises to defendant no.4, are trying to extort money from Meera Jadhav ::: Uploaded on - 05/07/2019 ::: Downloaded on - 06/07/2019 01:30:43 ::: 3/7 nmsl-1589-19(912).doc defendant no.4 by impeding the development of the project. Mr. Kadam's arguments were that plaintiffs could not have been tenants at all because the Deed of Assignment on which plaintiffs are relying to be the assignees of tenancy rights of the assignors, cannot be a valid document because the assignors at that time were also the owners and the owner cannot be a tenant. Therefore, such a tenant who did not have any rights of tenancy, could not have assigned the tenancy rights to plaintiffs. Mr. Kadam also submitted that documents indicate that defendant no.7 was the owner at the time the alleged tenancy rights were assigned, but the Deed of Assignment of tenancy rights does not indicate the consent of defendant no.7 was obtained. Mr. Kadam also submitted that the Deed of Assignment had certain escrow arrangements etc. mentioned and certain conditions to be fulfilled but there is nothing to show that such conditions were fulfilled and, therefore, the claim for tenancy is a fraudulent claim. Mr. Kadam also submitted that entire project was going to be a residential project and the NOC which defendant no.7 had obtained from MHADA in September 2010 provides " in case of non residential occupier the area to be given in the reconstructed building will be equivalent to the area occupied in the old building". Mr. Kadam submitted that MCGM has also granted Intimation of Disapproval (IOD). Mr. Kadam also submitted that that 111 out 153 residential tenants have vacated and 8 out of 9 non-cessed tenants (plaintiff nos.1 and 2 are non-cessed tenants) are agreeing for the re-development as Meera Jadhav ::: Uploaded on - 05/07/2019 ::: Downloaded on - 06/07/2019 01:30:43 ::: 4/7 nmsl-1589-19(912).doc proposed by defendant no.4 and, therefore, if a stop work order is issued, the project will get delayed and all other tenants will also get affected. 6 Mr. Madon submitted that IOD has been obtained on the basis of misrepresentations to MCGM that all structures in the Pardiwala Chawl premises as required will be demolished prior to obtaining the commencement certificate. Mr. Kadam states that commencement certificate has already been issued. Mr. Madon states that false representations have been made by defendant no.4 for obtaining commencement certificate stating that the structure of plaintiffs have been demolished. Photographs which have been taken on 14 th June 2019 of the current structure are annexed at Exhibit C to the plaint. The structure still seems to be intact. It is just that the roofs are missing. Roofs have been missing from a very long time and that does not mean that structure does not exist.
7 At the outset, I need to note that we are at the ad-interim stage, where the court has to consider whether a prima facie case has been made out and the balance of convenience. The Deed of Conveyance based on which defendant no.4 claims ownership to the Pardiwala Chawl premises has the list of tenants. Recital A(h) reads as under:
"(h) List of the tenants / occupants presently occupying authorized cessed and non-cessed structures in the said property is setout in the Second schedule hereunder written. More than 70% of such tenants/ occupants have granted consent in favour of the Owner for the development / re-
development of the said property."
(emphasis supplied)
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The second schedule, at Sr.No.162, mentions the name of plaintiff nos.1 and 2 as tenants and the premises as non residential. To the Conveyance Deed, are also documents which show that plaintiff nos.1 and 2 were the tenants of defendant no.7. Therefore, defendant no.4 has entered into the Conveyance Deed, accepting the position of plaintiff nos.1 and 2 as tenants of defendant no.7.
8 I cannot also disregard the submissions of Mr. Madon that commencement certificate has been obtained by Defendant No.4 after representing that the structure of plaintiffs has been demolished, when prima facie, from the photographs annexed to the plaint, it is incorrect. The roofless structure is still intact. MCGM/MHADA also have to explain on what basis they accepted that plaintiffs structure has been demolished. 9 Therefore, at this stage, I see no reason why I must accept the submissions of Mr. Kadam that plaintiff nos.1 and 2 could not have been even tenants. I am rather surprised at this stage with the stand of defendant no.4 who are even disputing, against such overwhelming prima facie evidence, that plaintiff nos.1 and 2 were even tenants.
Plaintiffs have made out a prima facie case to be tenants in the said premises.
10 Mr. Kadam offered to keep aside 10000 sq.ft. of residential space for plaintiffs in the building to be developed. I cannot gather myself to believe that defendant no.4 will in right earnest keep aside so much area Meera Jadhav ::: Uploaded on - 05/07/2019 ::: Downloaded on - 06/07/2019 01:30:43 ::: 6/7 nmsl-1589-19(912).doc when they can even deny that plaintiff nos.1 and 2 were tenants against such overwhelming documentary evidence annexed to the Deed of Conveyance between defendant no.4 and defendant no.7. Moreover there are no building plans sanctioned, on record. It is not clear which 10000 sq.ft. in the proposed building will be kept aside for plaintiffs. These are offers made orally.
11 In the circumstances, ad-interim relief in terms of prayer clause
(b) of the notice of motion has to be granted and is hereby granted. Prayer clause (b) reads as under:
"(b) pending the hearing and final disposal of the present suit, this Hon'ble Court be pleased to pass necessary orders and/or directions restraining defendant no.4 from commencing and carrying out development work on the property viz. all that piece and parcel of land bearing C.S.No.211 and 212, Sitaram Jadhav Marg, Lower Parel, Mumbai 400 013 in any manner whatsoever."
12 Mr. Kadam seeks stay of the order. In view of the overwhelming evidence staring on the face of defendant no.4 that plaintiffs are tenants and documents have been annexed to the Deed of Conveyance, defendant no.4 still took a stand that plaintiffs are not even tenants. Prima facie, it also appears that correct representation have not been made by defendant no.4 to MHADA/MCGM. In such a situation, in my view, if I grant the stay, there is possibility of plaintiffs' right being totally breached. Therefore, stay refused.
Meera Jadhav
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13 Affidavit in reply to be filed and copy served within two weeks
from today. Rejoinder, if any, to be filed and copy served within two weeks thereafter. Notice of motion be listed for hearing on 20 th August 2019. 14 Within three weeks all office objections in the suit as well as notice of motion to be removed and the suit as well as notice of motion to be numbered, failing which, the suit as well as notice of motion will stand dismissed without further reference to the court.
(K.R. SHRIRAM, J.) Meera Jadhav ::: Uploaded on - 05/07/2019 ::: Downloaded on - 06/07/2019 01:30:43 :::