Bombay High Court
Rafique Ahmed Ansari And 3 Others vs Municipal Corporation Of Greater ... on 7 October, 2014
Author: Anoop V. Mohta
Bench: Anoop V. Mohta, A.S. Gadkari
PNP 1/7 WPL2335-7.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODG.) NO.2335 OF 2014
1. Rafique Ahmed Ansari
Aged 55 yrs, Occ : Business
Room No.6, 1st floor,
2. Abdul Latif Yasin Shaikh
Aged 66 years, Occ: Retired from
Service, Room No.6, ground floor
3. Mohammed Salim
Mohammed Yasin Shaikh
Aged 56 yrs, Occ: Taxi Driver,
Room No.7, ground floor,
4. Abu Bakar Qadri
Aged 67 yrs, Occ: Retired from
Service, Room No.9, ground floor,
65, Hari Jairam Chawl, M.A. Road,
Byculla, Mumbai 400 011. ...Petitioners.
versus
1. Municipal Corporation for
Greater Mumbai, a Corporation
duly incorporated under the
Mumbai Municipal Corporation Act,
Having its office at Mahapalika Road,
Fort, Mumbai - 400 001.
2. Blue Pearl Developers
Potia Apartment No.2, ground floor,
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PNP 2/7 WPL2335-7.10
Office No.4, 292, J.B. Behram Marg,
Mumbai Central (East),
Mumbai - 400 008. ..Respondents.
.....
Mr. J.B. Mishra for the Petitioners.
Mr. A.Y. Sakhare, Senior Advocate with Ms. Shobha Ajithkumar for the
MCGM.
Mr. Deepak Chitnis with Shirin Shaikh i/b M/s. Deepak Chitnis-Chiparikar &
Co. for Respondent No.2.
Mr. Bharat Zaveri for Respondent No.5.
ig .....
CORAM : ANOOP V. MOHTA &
A.S. GADKARI, JJ.
7 th October 2014.
ORAL JUDGMENT (PER ANOOP V. MOHTA, J.) :
Rule, made returnable forthwith. By consent of the learned counsel heard finally.
2. The Petitioners have filed a suit in the year 2010 and challenged the redevelopment scheme at municipal property in question as illegal, bad in law. A prayer is also made for providing a permanent alternate accommodation and a transit accommodation with the amenities. The suit was filed by Petitioner No.1 only. Other Petitioners have not filed such suit. Ad interim relief is also sought against the developer, from ::: Downloaded on - 13/10/2014 23:47:55 ::: PNP 3/7 WPL2335-7.10 demolishing and /or dispossessing the Plaintiff from his respective room. A statement is made that no interim relief as prayed by the Petitioners was granted and the Motion in fact was dismissed on 29th September 2014.
3. The Petitioners who are occupants of the Corporation building in question have filed the present Petition on 28 th August 2014. Inspite of notice, the Petitioners have refused to vacate the premises, the proceedings under Section 105-B of the MCGM Act are invoked, which is the power to evict person from Corporation premises. The eviction proceedings are pending before the concerned enquiry officer E ward Mumbai. In the Petition, the Petitioners have prayed to quash and set aside the same and also prayed for stay of the eviction proceedings so initiated.
4. Respondent No.2 has filed its reply dated 30 th September 2014 and resisted the claim on all the grounds apart from the conduct of the Petitioners whose intention as stated is nothing but to halt the project by all possible means.
5. The learned senior counsel appearing for the Respondent Corporation has also pointed out the relevant provisions and the documents to justify the case of taking action in view of above position on record. Out of 28 tenants/ occupants, 22 tenants / occupants have already vacated and entered into specific agreement with the developer. We are not going to accept the case of the Petitioners that only 16 occupants/ ::: Downloaded on - 13/10/2014 23:47:55 ::: PNP 4/7 WPL2335-7.10 tenants have vacated. Those occupants are not before us. We are inclined to accept the statement made by learned senior counsel appearing for the Respondent Corporation as well as the developer. In any way that itself is a factor which goes against the Petitioners / occupants who are opposing / halting this development. A statement is made by the developer that they are providing Rs.15,000/- per month to each occupants as rent for enabling them to acquire temporary alternate accommodation. Payments to all 16 tenants / occupants and later on six more have been made for 12 months in advance to the extent of Rs.1,80,000/- to each tenant / occupant at the time of handing over vacant possession of their respective premises. They have also agreed to provide to the occupants permanent alternate accommodation of an area admeasuring 360 sq.ft.
(carpet area approximately) subject to verification and approval of plans by the MCGM which is inclusive of fungible FSI. A statement is also made that they have agreed to pay a sum of Rs.1,25,000/- as corpus fund to every member.
6. A statement is also made that they have already offered the same thing to the Petitioners but for one reason or another they are not just accepting the same and delaying the project. This, in our view, is a sufficient reason to dismiss the present Petition as the action so initiated by the Respondent based upon the documents so referred above is an authoritative action which the Respondent Corporation is under an obligation to invoke. Such occupants cannot be permitted to retain the premises and so also the development when majority of the occupants ::: Downloaded on - 13/10/2014 23:47:55 ::: PNP 5/7 WPL2335-7.10 have already vacated and the developer has already invested huge amount for the development of the property in question. One cannot overlook the fact that such occupants, but for the settlement / agreement, cannot claim permanent alternate accommodation being tenants / occupants of the Respondent Corporation. To exploit the plot in question commercially, offer is made which is in the interest of all the concerned. The plot area is 358 sq. mtr., out of which 30% is going in setback area. Therefore it is difficult to provide temporary alternate accommodation at the site.
7. The submission that the suit is pending and so also the rights / entitlement so made in the suit thus cannot be adjudicated in this Writ Petition, is not acceptable for the simple reason that the proceedings so challenged in the present Writ Petition have a basis of Section 105-B of the BMC Act. That has direct link and connection with the development of the property in question which is admittedly owned by the Corporation. All other occupants as recorded above have already vacated. A portion of the building is also collapsed. Therefore though the building is in C-2B category, still the above admitted position just cannot be overlooked to halt the project at the instance of the occupants who along with others will be getting compensatory monthly amount so referred apart from the permanent alternate accommodation of the area so offered. The Petitioner cannot claim more than this. If we go by their rights, there is nothing on record to show that such occupants are entitled to permanent alternate accommodation except for the settlement so referred above. However, in the interests of justice we are inclined to grant four weeks' ::: Downloaded on - 13/10/2014 23:47:55 ::: PNP 6/7 WPL2335-7.10 time to vacate.
8. The balance of convenience also lies in favour of the Respondents apart from other occupants who have already vacated the premises and waiting for their new premises to be built up by the Respondents, so that they can be reaccommodated or rehoused in the new building. Petitioner No.1 by filing the suit tried to halt the project one way or the other since 2010. The averment made in the Petition is that there is no alternate efficacious remedy available as the same development project is challenged by atleast one of the Petitioners. To delay this eviction proceedings further therefore will not be in the interest of anybody including the Petitioners who ultimately are entitled to get the permanent accommodation at the earliest if they vacate the premises and the developer is permitted to proceed with the construction as per law. The Petition is therefore dismissed.
9. Learned counsel for the Petitioner after hearing the parties for a considerable time sought permission to withdraw the present Petition. For the reasons so recorded above and considering the conduct of the Petitioners and to avoid further delay and complication, we have heard all the counsel who have also opposed such withdrawal, and we are inclined to reject the submission.
10. However, four weeks' time is granted to vacate the premises. The Respondent Corporation is at liberty to take action in accordance with law ::: Downloaded on - 13/10/2014 23:47:55 ::: PNP 7/7 WPL2335-7.10 in case the Petitioners fail to vacate the premises within the time prescribed.
Parties are at liberty to settle the matter. No costs.
(Anoop V. Mohta, J.) (A.S. Gadkari, J.) ::: Downloaded on - 13/10/2014 23:47:55 :::