Bafati Allaudin Mansuri vs Mumbai Metropolitan Region
2013 Latest Caselaw 127 Bom

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    dgm




                                                                            
               IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                    
                        CIVIL APPELLATE JURISDICTION

                   APPEAL FROM ORDER NO. 621  OF 2013
                                WITH




                                                   
                             CAA/744/2013


    Bafati Allaudin Mansuri                                ....   Appellant 




                                         
                                                     (Orig. Plaintiff)
          vs               
    Mumbai Metropolitan Region
    Development Authority & ors.                     ....    Respondents
                          
                                                     (Orig. Defendants)


    Mr. J. S. Kini with Mr. Suresh Dubey for the Appellant.
          


    Mr. Kuldeep S. Patil for respondent No.1. 
       



                                   CORAM:  ANOOP V. MOHTA, J.

DATE : October 29, 2013

ORAL JUDGMENT:

The Appellant/Plaintiff has filed the present Appeal from

Order as the learned trial Judge by impugned order dated 16 May

2013, refused to grant ad-interim relief as sought for.

    2            The   Appellant   has   prayed/challenged   the   action   of 





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Respondent No.1, whereby they have sealed the suit premises i.e. shop

No.7 situated at building No.14, Bismillah Beef Shop, Hiranandani

Akruti, Tata Nagar, Mankhurd(W), Mumbai. There is no dispute that

the Plaintiff is the original allottee of the suit premises. He is in

occupation and possession since the date of allotment. As per the

policy/Regulation, such allottee cannot transfer and/or create third

party right or interest in the suit premises without the permission of

Respondent No.1. Based upon some complaints, Respondent No.1's

Officer/Agent visited the shop and noted that a third person, than the

allottee, is using and running the shop in the said premises. The so-

called notice was given only to the occupier and not to the

Plaintiff/original allottee. The occupier appeared before the Authority

pursuance to the show cause notice and pointed out that pursuance to

the Power of Attorney, he is doing business on behalf of the Plaintiff.

3 Admittedly, no separate and/or individual notice was

served upon the original allottee even as per the office record of

Respondent No.1. There is nothing on record to show and/or suggest

the service of such notice. However, based upon this information,

without giving any opportunity to the Appellant/plaintiff, Respondent

No.1 sealed the premises which, in my view, is impermissible. Once

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the premises is allotted by the Respondent/Authority, any breach if

committed by the occupier/allottee, the action is required to be taken

in accordance with law. The principle of natural justice and fair

opportunity just cannot be overlooked while taking such drastic action

though third person is in possession of the allotted premises in

question. The nature of possession of third person/party in the

present case and as contended, based upon the material placed on

record, was on the basis of General Power of Attorney given by the

Plaintiff, who is a senior citizen, to do the business on his behalf, just

cannot be overlooked. Such occupation of third person than allottee,

whether permissible and/or not, is again a matter of trial and/or the

terms of the allotment, but the action of sealing the premises, in my

view, is contrary to law apart from the principle of natural justice as

recorded above. Admittedly, no show cause notice was served upon

the original allottee. Therefore, the sealing of the premises is

apparently contrary to law and is unsustainable. The burden cannot

be put upon the Plaintiff at this prima facie stage to justify the action

of permitting third person to do the business on his behalf. The

burden is upon Respondent No.1 before taking action to verify and

confirm the position. Even before sealing such allotted premises, in

my view, the requirement is that Respondent No.1 should have

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cancelled the allotment first and after giving opportunity to vacate the

premises, later on should have sealed the premises and not before

that. Here Respondent No.1 sealed the premises and now want

explanation and/or putting burden upon Appellant/plaintiff to

support their conduct of permitting to do the business on his behalf in

the allotted premises.

Therefore, taking overall view of the matter and

considering the above undisputed position on record, I am inclined to

grant the Notice of Motion as filed by the Plaintiff as the case is made

out for grant of a mandatory injunction/order. The Court is

empowered, in such circumstances, to restore the original position by

ordering unsealing of the premises. The irreparable injury, balance of

convenience and the equity, apart from conduct, lies in favour of the

Appellant and certainly not in favour of Respondent No.1. No one will

be benefitted by keeping such premises sealed till the disposal of the

suit or settlement between the parties.

5 The Notice of Motion is therefore granted in terms of

prayer (a), pending the decision of the Suit. However, it is made clear

that the Appellant/plaintiff shall not transfer and/or create third party

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right or interest, in the suit premises, till disposal of the Suit.

6 The Appeal from Order is accordingly allowed. Civil

Application No.744/2013 is also disposed of accordingly. No costs.

(ANOOP V. MOHTA, J.)