Bombay High Court
Tarun Mahendra Patel And Another vs Amool Shivaji Rokade And Others on 5 September, 2022
Bench: C.V. Bhadang
1-ao-788-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 788 OF 2022
Tarun Mahendra Patel and Anr. ...Appellants
V/s.
Amool Shivaji Rokade and Ors. ...Respondents
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Mr. Mayur Khandeparkar i/b. Mr. Mehul A. Shah, for the
Appellants.
Mr. Samir Vaidya, for the Respondent No.1.
Ms. Manisha Jagtap a/w. Mr. Shubham Gade a/w. Ms. Padmaja
Malgaonkar a/w. Mr. Mayuresh Ingale, for the Respondent -
MHADA.
Mr. R. Y. Sirsikar, for the Respondent / MCGM.
Digitally
signed by
MAMTA
MAMTA AMAR
AMAR KALE
KALE Date:
2022.09.06
10:28:45
----
+0530
CORAM : C.V. BHADANG, J.
DATE : 5 SEPTEMBER 2022
P.C.
. The challenge in this appeal, at the instance of the
Appellants / original Plaintiffs, is to the order dated 6 May 2022,
passed by the learned City Civil Court at Mumbai, in Notice of
Motion No.1747/2022 in Suit (Lodging) No.5181/2022. By the
impugned order, the learned City Civil Court has refused to grant
ad-interim relief sought for by the Appellants.
Mamta Kale page 1 of 8
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2. That premises of 'Bharat Green Lodging House' bearing
House No.926-A and the shops abutting the said premises
bearing No.926-B standing on City Survey No.1133 more
specifically described in para 2 of the plaint are subject matter of
dispute. Indisputably, there is a separate ground plus three storey
structure known as 'Tukaram Smruti Building' standing on the
said plot bearing City Survey No.1133. According to the
Appellants, the suit premises were rented out to Late Anandiben
Patel. The Appellants are the nephews of Late Anandiben Patel
and claim to be in possession of the suit premises since last more
than 30 years. It is the specific case made out that the suit
premises are not part of Tukaram Smruti Building and there is no
Memorandum of Understanding (MoU) or an agreement
between the owner of the suit premises and the first Respondent
- Developer for redevelopment of the suit property. It is pointed
out that the Respondent - Corporation has issued a notice under
Section 354 of the Mumbai Municipal Corporation Act (said Act,
for short) in respect of Tukaram Smruti Building alone. It is
pointed out that the suit properties are not subject matter of the
said notice. The first Respondent has filed a proposal with the
Respondent No.3 and 4 for redevelopment of the property
standing on City Survey No.1133 as per DCR 37(7) of
Development Control and Promotion Regulation 2034, which is
pending.
Mamta Kale page 2 of 8
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3. The Appellants, apprehending interference / demolition of
the suit premises under the garb of redevelopment and/or
implementation of the notice under Section 354 of the said Act,
filed the aforesaid suit for injunction restraining the Respondents
from interfering or disturbing the Plaintiffs' possession over the
suit property. The Appellants have taken out a notice of motion
for similar reliefs pending disposal of the suit. It appears that on
behalf of the Appellants, ad-interim relief were sought for in
terms of prayer clause (a), (b) and (d) which are essentially in the
nature of an order restraining the Respondents from interfering
with the suit premises and/or from demolition and interference in
the ingress and egress.
4. The notice of motion was resisted on behalf of the
Respondents. The Respondent No.1 contended that a proposal
for redevelopment of entire City Survey No.1133 of TPS-4 of
Mahim Division which includes all the adjoining structures
including Tukaram Smruti Building is filed with the Respondent
Nos.4 and 5 and the premises have been inspected. It was
contended that the premises are cessed properties and part of City
Survey No.1133 and as per DCR 37(7), all the occupants of the
suit property, whose names would be reflected in the certified list
of tenants / occupants, will be entitled for the benefits of
redevelopment.
Mamta Kale page 3 of 8
1-ao-788-2022.doc
5. The Respondent - Corporation claimed that Tukaram
Smruti Building is declared as C1 category and therefore, the
notice is issued under Section 354 of the said Act.
6. The Respondent Nos.4 and 5 pointed out that in response
to a letter dated 12 April 2022, the Appellants have submitted
necessary documents and the claim of the Appellants is under
consideration. However, it was disputed that there is any
apprehension of dispossession and/or demolition.
7. The learned City Civil Court after noticing the fact that the
certified list of tenants / occupants is yet to be prepared and
further having regard to the fact that the redevelopment is not yet
approved by issuance of IOD and CC and further having noted
that the Defendant Nos.4 and 5 are bound to give the benefits of
redevelopment to the certified tenants / occupants, has found that
there is no irreparable loss even if the suit premises are
demolished. The learned City Civil Court has also come to the
conclusion that an equaly efficacious remedy is available to the
Appellants for claiming benefits of redevelopment. In that view
of the matter, the ad-interim reliefs have been refused.
8. I have heard the learned counsel for the parties. Perused
record.
Mamta Kale page 4 of 8
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9. It is submitted by the learned counsel for the Appellants
that the tenancy rights inherited by the Appellants through Late
Anandiben Patel in respect of the suit premises are distinct. It is
pointed out that these rights cannot be interfered with otherwise
than in due course of law under the garb of redevelopment
and/or implementation of the notice under Section 354 of the
said Act. It is submitted that the suit premises are stand alone
structures separate from Tukaram Smruti Building. It is
submitted that the notice under Section 354 is only pertaining to
Tukaram Smruti Building and not the suit premises of Bharat
Green Lodging House. He submitted that the Appellants have a
reasonable apprehension that under the garb of proposed
redevelopment and/or the implementation of the notice under
Section 354 of the said Act, the suit premises may be interfered
with affecting the rights of the Appellants.
10. The learned counsel for the Respondent No.1 has pointed
out the MoU dated 25 August 2015 between the Respondent
No.1 being proprietor of M/s. Vimal Properties and Associates
and Late Anandiben Patel. It is submitted that the proposal for
redevelopment of the entire City Survey No.1133 is filed and is
pending with the Respondent Nos.3 and 4. It is submitted that
the suit premises are part of the structures standing on City
Survey No.1133 which are proposed to be redeveloped under
DCR 37(7). It is submitted that learned City Civil Court has
Mamta Kale page 5 of 8
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rightly found that the Appellants would not suffer any irreparable
loss as they would be entitled to benefits of redevelopment and
therefore, the ad-interim reliefs have rightly been refused.
11. I have considered the submissions made.
12. Admittedly, Late Anandiben Patel was the tenant of the suit
premises. It can prima facie be seen that the notice under Section
354 of the said Act is in respect of Tukaram Smruti Building
which is a separate structure than the suit premises. It can further
be seen that the notice under Section 354 of the said Act does not
include the suit premises. Thus, at least prima facie, there is no
question of interference or demolition of the suit premises
purportedly for implementation of the notice under Section 354
of the said Act. In so far as redevelopment is concerned, the
proposal submitted by the Respondent No.1 is still pending
before the Respondent Nos.3 and 4. The learned counsel for the
Respondent Nos.3 and 4 submitted that it is at the initial stage.
Admittedly, the IOD and CC is not yet issued.
13. After the appeal was reserved for judgment, on the last date,
it was contended by the learned counsel for the Respondent No.1
that a group of persons purportedly at the instance of the
Appellants had entered the area which was cordoned off and
enclosed by sheets and had made an attempt to destroy the sheets
enclosing the premises of Tukaram Smruti Building.
Mamta Kale page 6 of 8
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14. The said aspect is disputed on behalf of the Appellants. It
is contended that on account of the fact that appropriate
precautions are not being taken at the time of demolition of
Tukaram Smruti Building, there is damage caused to the suit
premises as there are cracks appearing on the wall etc.
15. Be that as it may, I do not propose to dwell on these
allegations and counter allegations, as they are subsequent events
and allegedly in respect of the enclosed space around the
Tukaram Smruti Building. The parties are at liberty to take
appropriate recourse as may be available to them in law and if so
advised. I am primarily concerned about the refusal of the ad-
interim relief in respect of the suit premises. Considering the fact
that Late Anandiben Patel was admittedly a tenant of the suit
premises and the Appellants claim to be her successors on the
basis of a Will being her nephews and in possession of the suit
premises and further having regard to the fact that the proposal
for redevelopment of the structures in City Survey No.1133 is
pending before the Respondent Nos.3 and 4, I find that it would
be appropriate if the ad-interim relief is granted restraining the
Respondents from interfering with the suit structure in any
manner and/or the ingress and egress, otherwise than in due
course of law. This order shall be in force during the pendency of
the notice of motion. In the result, the appeal is partly allowed.
The Respondents, their Officers and anybody on their behalf, are
Mamta Kale page 7 of 8
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restrained from interfering with the suit premises and the ingress
and egress of the Appellants, in any manner, otherwise than in
due course of law, pending disposal of the notice of motion. The
hearing and disposal of the notice of motion is expedited.
16. The learned City Civil Court shall proceed to decide the
notice of motion, on its own merits and in accordance with law,
without being influenced by the ad-interim granted by this
Court. Rival contentions of the parties, on merits, are left open.
In the circumstances, there shall be no order as to costs.
C.V. BHADANG, J.
Mamta Kale page 8 of 8
