Mobile View
Main Search Forums Advanced Search Disclaimer
Cites 1 docs
Iti Employees ... vs State Of Karnataka & Ors. on 4 December, 2009

Bombay High Court
Smt. Esther Manickam vs H on 27 September, 2013
Bench: Anoop V. Mohta

1 3-aost-23627-13 with caast-23629-13.sxw dgm

IN THE HIGH COURT OF JUDICATURE AT BOMBAY rt

CIVIL APPELLATE JURISDICTION

ou

APPEAL FROM ORDER (Stamp) NO. 23627 OF 2013 WITH

C

CAAST/23628/2013

Smt. Esther Manickam .... Appellant vs

h

1 Municipal Corporation of Greater Bombay ig

2 M/s. Blue Estate Private Ltd. ..... Respondents H

Mr. Vatsal Shah with Ms. Asha Bhuta i/by M/s. Bhuta Associates for the Appellant.

Mr. S.K. Sonawane for respondent No.1-Corporation. Mr. V.A. Thorat, Senior Advocate with Mr. P. J. Thorat for respondent y

No.2.

CORAM: ANOOP V. MOHTA, J.

ba

DATE : September 27, 2013

om

ORAL JUDGMENT:

Rule, returnable forthwith. Heard finally by consent of the parties.

B

2 The tenant who is in occupation of a premises by paying rent less than Rs.50/- per month, not willing to vacate the premises though offer is made to compensate by paying about Rupees one crore ::: Downloaded on - 02/10/2013 21:59:27 ::: 2 3-aost-23627-13 with caast-23629-13.sxw and more. The premises is very short but the demand and expectations are very high. This Appeal from Order is filed by the rt

Appellant/original Plaintiff as the learned Judge, City Civil Court, ou

Dindoshi, Mumbai, refused to grant ad interim relief by order dated 22 August 2013. The Suit as well as Notice of Motion are still C

pending. A notice under Section 354 of Mumbai Municipal Corporation Act, 1888 to pull down the suit premises i.e. Flat No.A-2, h

Ground floor, Ruia Building on CTS No.72A (part), Survey No.44 ig

(part), Military Road, Juhu, Mumbai 400049, is challenged in the Suit H

mainly on the ground and with prayer to provide alternate permanent accommodation being tenant of the premises/flat of area admeasuring y

340 sq.ft. Along with other 13 tenants. Notice of Motion was also ba

filed for interim reliefs against both the Respondents not to take further action including pulling down of the premises. om

3 Admittedly, all other 13 tenants have already vacated as B

Respondent No.2 compensated them by paying at the market rate of about Rs.28,000/- per square feet. They themselves voluntarily vacated the premises. All the tenants, in a Suit filed by Defendants/Respondent No.2 for eviction have filed Consent Terms some time in August 2012 accordingly. The Suit filed against the ::: Downloaded on - 02/10/2013 21:59:27 ::: 3 3-aost-23627-13 with caast-23629-13.sxw Appellant/plaintiff is still pending as the Appellant is not ready and willing to vacate the premises along with the same line. The rt

Appellant, on the contrary, preferred the Suit some time in August ou

2013 seeking restraintment order against the Respondents/Defendants inspite of above undisputed position on record that except the C

Appellant, no one else is in occupation of the premises which, according to the Respondent/Corporation, is required to pull h

down/demolish being in a dilapidated condition. ig

H

4 On 29 August 2013 as ad interim relief was not granted, the Appellant mentioned the matter in view of urgency, the Court has y

recorded as under :

ba

"2 The Appellant Ms. Esther Manickam, who is present in the Court and the learned counsel appearing for om

the Appellant, ready and willing to accept the consent terms of the year 2011, to be signed on similar line as signed by B

Respondent No.2 with other tenants, who already vacated the premises. The learned senior counsel appearing for Respondent No.2, on instructions, makes statement that they will accordingly prepare the consent terms, except figures and the area to be signed by the parties on 3 ::: Downloaded on - 02/10/2013 21:59:27 ::: 4 3-aost-23627-13 with caast-23629-13.sxw September 2013."

rt

5 On 3 September 2013, after hearing, the matter was again ou

kept on 5 September 2013 for final disposal. Respondent No.2 again suggested compromise on the same terms which they have done with C

other occupants. The draft consent terms was also handed over, whereby intention was shown to settle the matter by paying monetary h

consideration at the market rate as paid to other occupants. The ig

Appellant was also present during this hearing. The time was sought H

to search for premises in the vicinity of the present area. y

6 On 5 September 2013, the Appellant expressed no desire ba

to settle the matter again as the insistence even on that day was to have a flat/premises of the equivalent area on the same plot. In view om

of this, the Court, required to reconsider the matter as issue was also raised about the structure condition and, therefore, directed to file a B

fresh report after joint inspection. The matter was accordingly adjourned to 12 September 2013. Time was sought to file the report. Status-quo order so granted, therefore, was continued. The liberty was granted to settle the matter again, but in vein. On 19 September 2013, the matter was again kept on 27 September 2013 for ::: Downloaded on - 02/10/2013 21:59:27 ::: 5 3-aost-23627-13 with caast-23629-13.sxw disposal.

rt

7 The Respondent/Corporation filed fresh report dated 10 ou

September 2013 along with affidavit/reply dated 19 December 2013 opposing the Civil Application filed in the present Appeal from Order. C

The report confirms the dilapidated condition of structure. The observations are as under :

h

"9) The flat of one tenant at ground floor ig

which is occupied was also inspected and it was found that tenantable repairs are carried out at few places by doing plaster to internal walls, external walls and sign of leakages H

was observed from the ceiling and external walls from the upper toilet.

Due to patch work plaster to this tenants room, y

the condition of reinforcement of R.C.C members could not be verified.

ba

Overall with visual observations, the building is in dilapidated condition and unsafe for human habitation om

due to structural condition, age of building and lack of maintenance.

This is also confirmed in the structural audit report given by Dr. M.A. Chakrabarti, Prof. Structural B

Engineering Deptt., V.J.T.I., on 21-11-2012 along with the photographs in the file accompanying at Pg. C1/97 (File No.2).

As per the above site observations during joint inspection and in view of the structural audit report from V.J.T.I., the building is unsafe and may collapse as the structure is deteriorating further. Sudden collapse may cause loss of human life and property hence, as ::: Downloaded on - 02/10/2013 21:59:27 ::: 6 3-aost-23627-13 with caast-23629-13.sxw recommended in the structural audit report of V.J.T.I., the better proposition is to pull down the structure after vacating. The notice u/Sec 354 of M.M.C. Act for puling rt

down the structure under reference is already issued by A.E. ( B & F) K/West Ward on 24-7-2013. ou

Complete file papers received are forwarded herewith for doing the needful please." C

The other bad part of the structure are also noted: the damaged and h

dilapidated part of the premises covering drainage, ground floor, ig

seepage due to severe cracks in plaster, reinforcement exposed, corroded at several places, cracks were observed in columns/beams at H

several places, balcony's in dangerous condition, columns below overhead tank was found with cracks and bulging and cracks were y

found in terrace in water proofing. ba

8 In all, an expert's finding again is that the building is om

unsafe for human habitation due to structural condition - age of building and lack of maintenance. Again observed and recorded that B

the building is unsafe and may collapse as the structure is deteriorating further. Therefore, reiterated that their proposed action to pull down the structure in view of the earlier report/notice dated 24 July 2013, apart from the intended notice/action. ::: Downloaded on - 02/10/2013 21:59:27 ::: 7 3-aost-23627-13 with caast-23629-13.sxw 9 It is clear that the Appellant has basically no objection, if Respondent No.2 proceed with the re-construction and/or pull down rt

the building , but the main prayer in the Suit as well as in the Notice ou

of Motion and also in an application filed in Appeal from Order dated 26 August 2013, is to direct Respondent No.2 to enter into an C

agreement with the Appellant for permanent alternate accommodation in the reconstructed building in lieu of suit premises. h

10

ig

Respondent No.2, not willing to enter into such agreement H

only with the Appellant. However, willing to settle the matter on same terms and conditions/consent terms, entered into with other y

occupants/tenants who already volunteered and filed the consent ba

terms and vacated the premises.

om

11 There is no objection whatsoever from those occupants of any kind including any resistance of this nature not to vacate B

premises/building which is in a dilapidated condition. Every body took the decision, based upon their own wish, desire and the premises condition and accepted the consent terms, except the Appellant. The Court, therefore, required to consider the facts and circumstances of the case as well as the conduct of the parties and also the principle of ::: Downloaded on - 02/10/2013 21:59:27 ::: 8 3-aost-23627-13 with caast-23629-13.sxw balance of convenience, equity, irreparable loss and injury. rt

12 There is no serious dispute with regard to the right of ou

tenant, but it is also settled that once the premises which is in occupation if demolished and/or falls down and the rights of C

occupants flowing because of the tenancy also required to be reconsidered and re-tested. In a given case, tenants may not be in a h

position to claim any right. The above admitted position on record ig

shows that except the Applicant, rest of the building/area is vacated H

by others. The condition is deteriorating day by day. The report supports the same. The Appellant, though at her risk occupying the y

premises alone and compelling the landlord/respondent/owner to ba

maintain the whole premises/building inspite of the clear offer given to her, is un justifiable. Respondent No.2, the owner of the property om

who is entitled to deal with the property. Even otherwise, tenants cannot object to transfer and/or even to create third party rights or B

interest in such property by the landlord. The owner, therefore, if wants to develop the property, but for want of insistence to have permanent alternate accommodation in the same premises, the suit is filed and also opposing and creating hurdle to the whole project, is entitled to oppose the action of the tenant. The costs already incurred ::: Downloaded on - 02/10/2013 21:59:27 ::: 9 3-aost-23627-13 with caast-23629-13.sxw by paying a huge amount by Respondent No.2 just cannot be overlooked merely because one tenant/occupant is opposing to rt

develop and/or not permitting the owner to develop the property. ou

The amount already spent and the delay which is causing just cannot be recoverable and/or compensated by the Appellant at any point of C

time.

h

13 Even otherwise, the submission revolving around the ig

alleged notice as well as the action of Respondent to get the premises H

vacated in such fashion, in my view, looses its importance as the Appellant's conduct and the purpose of this Suit is only to have an y

agreement/permanent alternate premises in the same area. The ba

Court directed Respondent No.2 to have a clear and/or independent agreement with the Plaintiff's willingness so expressed initially now om

again changed by change of Advocate, is of no assistance as Respondent No.2 is still willing to settle the matter on the same line B

along with other occupants. Even otherwise, parties are at liberty to settle the matter at any stage.

14 The submission that the action is malafide, impermissible, as no case to demolish the structure and especially premises in ::: Downloaded on - 02/10/2013 21:59:27 ::: 10 3-aost-23627-13 with caast-23629-13.sxw question is also not acceptable in view of the facts and circumstances of the case. The premises, even if, as contended is not in damaged rt

condition and/or repairable, but in view of the above undisputed ou

position on record, the Appellant only cannot be permitted to retain the premises and to halt the project for which huge amount has C

already been spent apart from the consent terms filed and acted upon by the parties so far as the other occupants are concerned. At the h

instance of one occupant, therefore, the alleged case of malafide or ig

illegality of notice cannot be decided as it will serve no purpose and H

would be of no interest of anybody including of the Appellant. The filing of the Suit in question and/or pendency of tenancy issue, in the y

background, in my view, is also no reason to grant interim protection ba

as sought in Notice of Motion as no case is made out to grant some protection and/or ad interim relief as sought for. The balance of om

convenience, equity, irreparable loss and injury apart from the conduct of the Appellant goes against the Appellant/plaintiff. B

15 The learned counsel appearing on behalf of the Appellant has strongly relied on Gajanan Ramraoji Ambagovind & ors. v. The Corporation of the City of Nagpur,1 and submitted that the action so 1 2006 (5) ALL MR 153

::: Downloaded on - 02/10/2013 21:59:27 ::: 11 3-aost-23627-13 with caast-23629-13.sxw initiated must be bonafide and the satisfaction of the Authority whether the entire building needs to be demolished and/or particular rt

portion needs to be demolished and part thereof can be allowed to be ou

occupied by merely causing repairs to the same, need to be considered in the background of the case. The facts and circumstances of Gajan C

(supra) is totally distinct and distinguishable. So far as the law is concerned, the same needs to be extended, based upon the facts. As h

recorded above, that judgment is of no assistance to the Appellant. ig

H

16 The learned senior counsel appearing for Respondent No.2 submitted by referring to Tadeshwar Wadi Co-operative Housing y

Society Ltd. vs. State of Maharashtra & ors.,2 and also supported by ba

the learned Counsel for the Corporation, that Section 354 of Mumbai Municipal Corporation Act, 1888 needs to be invoked, if case is made om

out. The Court has also accepted the position and power of the Corporation to evict occupier/owner of dilapidated building even by B

force. Referring to the facts, it was pointed out that the Division Bench of this Court has in fact directed the Corporation to take action against those occupants who have not evicted the premises in accordance with law forthwith and also permitted to take assistance of 2 2013 (3) Bom. C.R.79

::: Downloaded on - 02/10/2013 21:59:27 ::: 12 3-aost-23627-13 with caast-23629-13.sxw the local police authorities who are obliged to provide all support to the officials of the Corporation.

rt

ou

17 In the present case, as recorded, if there is no challenge to the demolition and/or re-structuring of the building, but demand is C

only to have permanent alternate accommodation/premises, this itself, in my view, sufficient to consider the case in favour of the h

Respondents and against the Appellant. The structure, as reported, if ig

requires to be demolished and as except the Appellant all have already H

vacated, there is no reason that the building in question needs to be repaired by the owner/Respondent No.2 only to permit the Appellant y

to occupy one flat in question. The submission that the Appellant will ba

repair premises is also of no assistance as it would cause further complication and specially when no one else is occupying the other om

portion and no one is maintaining the same since long. The Appellant is, in no way, can be directed even to maintain the whole premises B

and/or area/plot merely because the Appellant want to continue to occupy the same. The submission is unacceptable and that is not practicable solution to halt the project and basically when as recorded, the huge amount has already been incurred and spent by Respondent No.2. Respondent No.1's obligation and in view of the specific ::: Downloaded on - 02/10/2013 21:59:27 ::: 13 3-aost-23627-13 with caast-23629-13.sxw Report filed recently, the Court, just cannot overlook, as their expertised opinion/report just cannot be tested at the instance of the rt

Appellant, in view of his main case/averments made in the Suit, as ou

well as, Notice of Motion in question. Those are contradictory, inconsistence and in fact self destructive. C

18 This Court in Appeal from Order required to make these h

observations as recorded above as efforts were made by the learned ig

counsel appearing for Respondents to settle the matter along with the H

same line. Though initially agreed, but later on the Appellant could not finalise and/or accept the terms. The insistence still is to have an y

alternate permanent accommodation on the same plot which ba

Respondent No.2 is not willing for various reasons. The Court cannot compel Respondent No.2 to have a settlement and/or agreement as om

sought to be contended and prayed by the Appellant. B

19 Therefore, taking overall view of the matter, I see no case is made out by the Appellant to interfere with the order so passed. The Appeal is accordingly dismissed. Rule is discharged. No relief, therefore, can be granted to the Appellant even in this Appeal as well as in the Application so filed. In view of this, the interim status- ::: Downloaded on - 02/10/2013 21:59:28 ::: 14 3-aost-23627-13 with caast-23629-13.sxw quo order so granted in this Appeal from Order also stands vacated. rt

20 The learned counsel appearing for the Appellant submitted ou

to continue the status-quo order for a period of four weeks. In view of above reasoning, I am not inclined to accept the submission. C

However, considering the fact that the Appellant has been in occupation, the time is granted to vacate the premises which should h

not be more than four weeks from today, provided the Appellant to ig

file undertaking within one week that she will vacate the premises H

within four weeks as directed. If undertaking is not filed within one week, the Respondents are at liberty to take steps in accordance with y

law. It is made clear that even if the Appellant files the undertaking, ba

the occupation of the Appellant, in view of above background, will at the risk of the Appellant.

om

21 The parties are still at liberty to settle the matter. B

22 In view of dismissal of Appeal from Order, Civil Application (ST) No.23629 of 2013 also stands disposed of. No costs. (ANOOP V. MOHTA, J.)

::: Downloaded on - 02/10/2013 21:59:28 :::