AO-G 1213 OF 2013
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1213 OF 2013.
WITH
CIVIL APPLICATION NO.1444 OF 2013 .
Lata Sunil Joshi .. Appellant.
V/s.
The State of Maharashtra
and ors .. Respondents.
ALONGWITH
APPEAL FROM ORDER NO.1214 OF 2013.
WITH
CIVIL APPLICATION NO.1445 OF 2013 .
Shalan S Kshirsagar .. Appellant.
V/s.
The State of Maharashtra
and ors .. Respondents.
ALONGWITH
APPEAL FROM ORDER NO.1215 OF 2013.
WITH
CIVIL APPLICATION NO.1446 OF 2013 .
Veena Budbadkar .. Appellant.
V/s.
The State of Maharashtra
and ors .. Respondents.
Mr. J. S. Kini a/w Suresh Dube for the
Applicant/appellant in al matters.
Mr. A. Y. Sakhare, Senior Advocate a/w Mr. S.
K. Sonawane, for respondent No2 2 and 3.
CORAM : ANOOP V. MOHTA, J.
DATE : 28th November, 2013 page 1 of 8 ::: Downloaded on - 23/12/2013 20:30:00 ::: AO-G 1213 OF 2013 Oral Judgment Heard finally by consent.
2. The appellant/plaintiffs have challenged order dated 29th October, 2013, passed by the learned Judge, City Civil Court, Greater Mumbai, whereby rejected the Notice of Motion. The prayers are sought to permit them to occupy ig the permanent alternate accommodation and/or such other similarly placed premises as per Annexure II published by defendant No.3 Municipal Corporation of Greater Mumbai (The Corporation), in view of the signed agreement by defendant No.4.
Admittedly, the appellants were in service as school teachers in the Municipal Primary School since 1984 and therefore allotted residential premises in Chawl No.1, Sion Bhandarwada, Mumbai 400 022, on a leave and license basis. They were in possession of the same being in employment of the corporation.
The occupation charges were paid by them page 2 of 8 ::: Downloaded on - 23/12/2013 20:30:00 ::: AO-G 1213 OF 2013 regularly.
3. The buildings/ premises were in a dilapidated condition. As per provisions of Development Control Regulation for Greater Mumbai, 1991 (The D.C.R. Rules), it was taken for development by entering their names in list Annexure II, being the occupier at the relevant time. Respondent Nos 3 & 4 even permitted to execute a separate agreement for entitlement of alternate permanent accommodation on completion of new premises.
The appellants vacated those old rooms. Till the date of redevelopment, they were getting a regular monetary compensation in lieu of the temporary accommodation.
4. The contesting respondents were fully aware of these facts. There was no objection of whatsoever nature at the relevant time with regard to the compensation they had been receiving. At the instance of respondent corporation, defendant No.4 builder has handed page 3 of 8 ::: Downloaded on - 23/12/2013 20:30:00 ::: AO-G 1213 OF 2013 over vacant possession of new rooms in 'A"
Wing in scheme to the Corporation and not to the appellants.
5. Statement is made by the learned Senior Counsel appearing for the Corporation that the departmental enquiry is already initiated against the respective ex-
employees/appellants.
6. There is no dispute with regard to the fact that at the relevant time, the appellants were occupier as contemplated under the B. C.
R. Rule and the execution of the agreement with the Builder. Annexure II at the relevant time is again a factor which are in favour of the appellants. However, undisputed position with regard to the employment and having employer-employee relationship, which is the basis of occupation of the premises, goes to the root of the matter, especially when the appellants retired from the services.
7. The submission is also made that the page 4 of 8 ::: Downloaded on - 23/12/2013 20:30:00 ::: AO-G 1213 OF 2013 other employees of respondent No.3 have been provided with such permanent alternate accommodation and the fact is not seriously disputed while filing affidavit-in-reply to the Motion, therefore, same benefits and/or reliefs ought to have been granted in favour of the appellant. The learned Judge, however, though not dealt with this specific aspect, but considered the provisions of law, and the aspect that the prayers so made are for nothing less than an ad-interim mandatory order. The law with regard to the same is quite settled. Recently in Therakan D. Joseph
-vs- M/s Dolphin Developers, in Appeal From Order No.1108, dated 15th October, 2013, I have already observed that, "there is no total bar that no ad-interim mandatory injunction can be granted, considering the scope and purpose of Order 39 Rules 1 and 2 of the Code of Civil Procedure read with Section 151 of the CPC and also considering the scheme of Specific page 5 of 8 ::: Downloaded on - 23/12/2013 20:30:00 ::: AO-G 1213 OF 2013 Reliefs Act, but this is only on a foundation of the exceptional and compelling case, justifying the same, covering the extreme hardship, immediate and pressing injury and injustice".
8. Though Court can grant ad-interim mandatory order, but situation should be very exceptional and clearly in favour of plaintiff and/or appellant who seeks such mandatory order. The employment in question in the present case, in my view, goes to the root of the matter, though other ingredients are available for the plaintiff to insist for such mandatory order. Once the employee is retired, the claim for retaining possession/premises goes away. Admittedly, the appellants are not in possession of the premises as they vacated old premises. The direction to provide them alternate accommodations, considering the submission so raised by the corporation, apart from the provisions of law so referred page 6 of 8 ::: Downloaded on - 23/12/2013 20:30:00 ::: AO-G 1213 OF 2013 and relied by the learned Judge is un acceptable situation
9. The appellants need to establish their case on all counts including of the tenancy right as alleged. Therefore, at this stage, I see there is no reason to interfere with the order so passed by the learned Judge. There is no perversity and/or illegality.
10. There are other prayers made in the suit including prayer clause (f). What is effect of agreement which the applicants entered into being in Annexure II and as there was no objection at any point of time of respondent Nos 3 & 4 and nothing wrong in their entitlement to retain and/or accept the compensation in lieu of temporary accommodation, in view of admitted employer-
employee relationship. However, this itself need to be decided by filing a proper affidavits/reply in the motion. But no relief at this stage in the Appeal from order can be page 7 of 8 ::: Downloaded on - 23/12/2013 20:30:00 ::: AO-G 1213 OF 2013 granted. Liberty is granted to the appellants to take out appropriate motion for the reliefs.
11. All the three Appeals From order, are accordingly disposed of. However, it is made clear that in view of the statement made by the learned Senior Counsel, the Respondent Corporation will be entitled to use and utilise the ig premises as a staff quarters, subject to result of the suit.
12. In view of the present facts and circumstances, the suit is expedited, to be disposed of within a period of six months.
The Respondent corporation and/or defendants are at liberty to file the written statements, within 30 days. All points are kept open.
13. Civil Applications and the Appeals are accordingly disposed of. No costs.
(ANOOP V. MOHTA, J.) page 8 of 8 ::: Downloaded on - 23/12/2013 20:30:00 :::