Bombay High Court
Sumitra Shashikant Khokhani vs The Municipal Corporation Of ... on 22 October, 2013
Bench: Anoop V. Mohta
1 ao.1154-2013
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1154 OF 2013
WITH
CIVIL APPLICATION NO.1367 OF 2013
1.Sumitra Shashikant Khokhani
an adult Indian Inhabitant
aged about 78 years, residing at
Amrut Bhuvan, Khokhani Lane,
Ghatkopar (E), Mumbai-77.
2.Vishesh Shashikant Khokhani
an adult Indian Inhabitant
aged about 56 years, residing at
Amrut Bhuvan, Khokhani Lane
Ghatkiopar (E), Mumbai-77.
3.Sanjay Shashikant Khokhani
an adult Indian inhabitant
aged about 52 years, residing at
Dev Krupa Building, 1st floor,
151, Jain Society, Sion,
Mumbai- 22. ...Appellants.
(Org. Plaintffs)
Vs.
1.The Municipal Corporation of Greater
Mumbai,
A statutory Corporation Formed
under MMC Act 1888, having its office
at 1 Mahapalika Marg,
Mumbai-400 001.
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2 ao.1154-2013
2.Shri A.S. Hakim
Asstt. Engineer (Bldg) & Fact)
"N" Ward, Municipal Office
having address at 5th floor, Jawahar]
Road, Ghatkopar (E), Mumbai-77.
3.Westbury Finvest Pvt. Ltd.
A Company Registered under the
Companies Act, having address at
461, Ran Niwas, Dr. B.A. Road,
King Circle, Matunga,
Mumbai-400 019.
4.Mr. Ajay Desai
Director of Westbury Finvest Pvt.Ltd.
5.Mr. Dattaji Desai
adult Indian Inhabitant of Mumbai
both are having address at 461,
Ran Niwas, Dr. B.A. Road,
King Circle, Matunga,
Mumbai-400 019.
6.Jyotindra Ishwarlal Khokhani
an adult Indian Inhabitant of
Mumbai residing at Amrut
Bhavan, Khokhani Lane,
Ghatkoper (E), Mumbai-77. ..Respondents.
(Org. Defendants)
---
Mr. J.S. Kini a/w Mr. Suresh Dubey for the Appellants.
Mr. S.K. Sonawane, for Respondent No.1.
Mr. G.S. Godbole i/b Mr. S.A. Sawant a/w Mr. H.V. Kode
for Respondent Nos.3,4 and 5.
Mr. P.s. Dani i/b Mr. J.S. Chandnani a/w Mr. Samir Suryawanshi
for Respondent No.6.
---
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3 ao.1154-2013
CORAM : ANOOP V. MOHTA, J.
DATE : OCTOBER 22, 2013.
ORAL JUDGMENT:
1 This Appeal from Order as the learned Judge by impugned
order dated 24 September 2013 dismissed Notice of Motion filed by the
Appellants along with Suit whereby the challenge is to the notice issued
under Section 354 of Mumbai Municipal Corporation Act (MMC Act) for
want of specific service to the occupier-Plaintiffs. A prayer is also made
for a direction to reconstruct room No.D-4, area admeasuring 240 sq.ft.,
situated at CTS No.15 and 16, Amrut Bhuvan, Khokhane Lane, Ghatkopar
(E), Mumbai.
2 The other tenants/occupants of the premises, the building
being dilapidated condition have already surrendered the tenancy to the
landlord and vacated the premises. The Appellants-occupants who by this
Suit and motion want to obstruct/withheld the project/development of other
area covering 1455 sq. meters . The agreement of development, though not
in dispute, cannot be the subject matter of this suit basically when
challenge is only to the notice issued by the Municipal Corporation, as
recorded above. The injunction is claimed for the entire area and not
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4 ao.1154-2013
restricted to 240 sq.ft of the room in question. The issue of development
agreement of total area is not the subject matter of the present suit and it
cannot be.
3 The room in question was already demolished. The prayer is
to reconstruct the same. The interim relief granted by the learned Judge
pending the disposal of the Notice of Motion. The submission is therefore
made that the same should be continued pending the Suit is unacceptable,
in view of admitted position on record.
4 The learned Judge, in view of above, has considered the rival
contentions and basically the factual position of non existence of the
premises and the urgent requirement of the development of the property in
question. The appellants' occupation was that of tenants only. The dispute
between the landlord and the tenants are going on. The eviction decree is
already passed against the Appellants. The same is subject to Appeal, if
any, in no way sufficient to overlook actual position of the demolition of
the premises by the Corporation after giving notice to the concerned.
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5 ao.1154-2013
5 Neither the landlord-owner complaining about the notice nor
the Developer. The illegality, if any, for want of service of notice just
cannot be the reason to accept the case of the Appellants-Plaintiff to grant
injunction so sought, basically when the premises in question (Room
No.D-4) itself is not in existence. The rights of the tenants in absence of
the premises in question, is again another facets which just cannot be
overlooked, at this interim stage of the proceedings, when the prayer is
against the developer, as well as, against the Corporation, apart from owner
to reconstruct the premises i.e. 240 sq.ft. area.
6 The illegal demolition even if any, is again a matter of trial.
When Court wants to exercise its discretion and especially in the
background so referred above, the principles i.e prima facie case, the
balance of convenience, irreparable loss/injury and equity, just cannot be
overlooked. The learned Judge, in my view, has considered in detail all
these principles and rightly come to the conclusion.
7 The submission that if no proper notices are issued to the
occupiers, it will be difficult for the Corporation and/or such other
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6 ao.1154-2013
authority to take and/or initiate action against the defaulters, as
contemplated under Section 354 of MMC Act and other provisions, is also
unacceptable. It is not the case that there was no notice whatsoever issued
and the Corporation demolished the structure. This issue therefore in no
way needs to be adjudicated at this stage of interim order. The suit is
pending.
8 The dispute between the landlord and the tenants in the matter
and issues arising out of the same and even rights based upon the
development agreement in question, just cannot be extended in the present
suit which is admittedly based upon the notices under Section 354 of MMC
Act. The structure if not in existence, even the effect of such notice or its
service and/or purpose of notice, needs to be tested at the trial. No case for
any mandatory injunction as prayed. The scope and purpose of such suit as
well as the motion cannot be extended at the instance of the Plaintiffs in
such fashion. The irreparable injury/loss, the balance of convenience and
equity in the background referred above, in my view, also lies in favour of
the Respondents and certainly not in favour of the Appellants-Plaintiffs.
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7 ao.1154-2013
9 The learned counsel appearing for the Developer states that
they are willing to keep 240 sq.ft. area subject outcome of the dispute
between the landlord and Defendant no.6 in the newly constructed
premises.
10 In the result, Appeal from Order as well as Civil Application
stand dismissed. No costs.
The learned counsel appearing for the Appellants submits that
the interim order granted by the Trial Court in terms of prayer clause (b)
which is in force till this date be continued. Considering the reasons so
given by the learned Judge as well as reasons so recorded above, I see no
case is made out to continue such interim order to halt the whole project at
the instance of Appellants whose claim in the suit is only to the extent of
area 240 sq.ft.. So also in view of the statement made by the learned
counsel appearing for the developer, as recorded above, I see no case is
made out for continuation of any injunction. Hence, the prayer is rejected.
(ANOOP V. MOHTA, J.)
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8 ao.1154-2013
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