Bombay High Court
With vs The State Of Maharashtra on 28 November, 2013
Bench: Anoop V. Mohta
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
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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
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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
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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
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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
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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
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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
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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.)
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