Judgment:
Oral Order:
1. By this Appeal, the original defendant no.4 has challenged the Judgment and order dated 1.8.2014 passed by the learned Judge, City Civil Court, Mumbai, in Draft Notice of Motion in L.C.Suit No.2160 of 2014. By that order, the learned Judge directed the defendants not to dispossess the plaintiffs from the suit premises till the decision of the Notice of Motion. The parties shall, hereinafter, be referred to as per their status before the trial Court.
2. The matter was heard earlier on 9.9.2014. Paragraphs 2 and 3 of the order dated 9.9.2014 read as under:
"2. Mr. Reis, upon taking instructions from the appellant, who is present in the Court, states that appellant is ready and willing to enter into registered agreement with respondents No.1 to 20 in respect of the permanent alternate accommodation. He has also handed over copies of those agreements to Mr. Khobragade, duly signed by the appellant. Mr. Reis states that appellant is ready and willing to offer Rs.18,000/- per month to respondents No.1 to 20 in lieu of offering temporary transit accommodation. Mr. Reis further states that in case respondent No.1 who is in occupation of the commercial premises is not agreeable to accept the temporary transit accommodation, the appellant is ready and willing to offer him compensation @ Rs.90/- per sq.ft. (existing carpet area). He further states that respondent No.1 is in possession of area admeasuring 21.48 sq.mtrs. He further submitted that he is ready to offer shop No.1, Mogul Hut, P. B. Marg, Masjid Gally, 9 Cross Lane, Mumbai 400 004 admeasuring 300 sq.ft. as and by way of temporary transit accommodation to respondent No.1. He states that the said shop can be used for commercial purpose."
"3. Mr. Khobragade states that respondent No.1 is not agreeable to the shop offered by the appellant. Mr. Reis states that in a day or two, he will try to find out any other premises for offering to respondent No.1. Mr. Khobragade further states that respondents No.2 to 20 are agreeable to accept Rs.18,000/- per month in lieu of temporary transit accommodation. Mr.Reis states that he is offering Rs.18,000/- per month on the basis that respondents No.1 to 20 are in possession of less than 300 sq.ft. area. The appellant has offered compensation of more than Rs.18,000/- to those who are in possession of area admeasuring 600 sq.ft. and above."
3. In pursuance of the statements made by Mr Reis, he has tendered a praecipe dated 11.9.2014 offering three premises as transit temporary accommodations to respondent no.1-plaintiff no.1. Mr. Khobragade submitted that plaintiff no.1 is not agreeable to accept any of the three premises, referred in the praecipe dated 11.9.2014 and has suggested other premises in the vicinity. However, during the course of hearing, Mr Khobragade, upon taking instructions from Mr Alex Montero, Constituted Attorney of plaintiff no.1 Angelal Noseph Montero, stated that plaintiff no.1 is agreeable to accept the premises at sr.no.1, namely Gala no.9, Imperial Shadow, Nav Maharashtra Nagar, M.P.Mill Compound, Tardeo, Mumbai-400 034, admeasuring 200 sq.ft along with 200 sq.ft loft. Photocopy of identity card of the power of attorney as also identity card of Mr Alex Monteiro is taken on record and marked 'X' collectively for identification. Mr. Reis states that defendant no.4 is ready and willing to hand over possession of Gala No.9 by tomorrow to plaintiff no.1. Statements made by Mr. Khobragade and Mr Reis, upon instructions, are recorded.
4. When the matter was called out today, Mr. Khobragade stated that plaintiff no.2 to 20 are not agreeable to accept Rs.18000/- per month and, therefore, are not ready and willing to vacate the premises in their respective occupation.
5. In view thereof, I have heard Mr. Joquim Reis, learned senior counsel for the appellant-defendant no.4, Mr. Rajesh Khobragade, learned counsel for respondents no.1 to 20-plaintiffs no.1 to 20 and Ms. Manasi Joshi, learned counsel for the original defendants no.1 to 3 at length.
6. Admit. The learned counsel appearing for the respective respondents waive service. At the request and by consent of the parties, the Appeal is taken up for final hearing.
7. Respondents no.1 to 20-plaintiffs instituted L.C.Suit No.2160 of 2014 in the City Civil Court, Bombay for (a) quashing and setting aside the notice dated 18.7.2014 issued by Maharashtra Housing and Area Development Authority (for short, 'MHADA') under section 95-A of the Maharashtra Housing and Area Development Authority Act, 1976, (for short, 'Act'); (b) directing the plaintiffs/tenants to vacate the premises and occupy the temporary transit accommodation in lieu of redevelopment of property bearing C.S.No.1191, 1/119, 2/1191, 1192, 1193, 1194, known as Sheetal Estate, Girgaum Division in D-Ward, situate at M.S.Ali Marg, Grant Road, Mumbai-400 007 (for short, 'suit premises'); (c) directing defendant no.4 to provide temporary alternate accommodation on site itself in the suit premises; (d) quashing and setting aside the permission/sanction/NOC dated 28.6.2012 for the suit premises and cancelling all permissions/ sanctions and approvals in terms of LOI, LOA and CC, if any, granted; (e) staying the operation, implementation and execution of proposed scheme/redevelopment on the suit premises; (f) staying execution and operation of the notice issued by the MHADA for eviction and vacating the premises and occupy the temporary transit accommodation provided by defendant no.4; (g) holding inquiry into illegalities and fraud committed by defendant no.4 in implementing the redevelopment scheme on suit premises; (h) directing defendant no.4 to abide and implement the Memorandum of Understanding dated 27.8.2007 and irrevocable consent.
8. During the pendency of the suit, the plaintiffs took out Draft Motion praying, inter alia, for direction to defendant no.4 to (i) provide temporary alternate accommodation on site itself, i.e. suit premises; (ii) stay operation, implementation and execution of the proposed scheme/re-development on the suit premises; (iii) stay the operation and execution of the notice issued by MHADA for eviction and directing the plaintiffs to vacate temporary accommodation provided by defendant no.4.
9. In support of this Appeal, Mr. Reis has taken me through the impugned order and in particular paragraphs 10 to 15 thereof. He submitted that the plaintiffs asserted in paragraph 31 of the plaint that vide letter dated 10.6.2014 addressed to Deputy Chief Executive Officer, they are not objecting the redevelopment but the developer is carrying development work and is not allotting transit accommodation on site. He submitted that the plaintiffs cannot challenge the NOC on this ground. In the order dated 4.7.2014 passed by the Deputy Chief Executive Officer of MHADA, it is recorded that out of eligible tenants, defendant no.4 has relocated 198 tenants and remaining 22 occupants/tenants are obstructing redevelopment project and defendant no.4 is ready to give temporary accommodation to 20 tenants. In that order, further direction was given to defendant no.4 to the effect that after entering into agreement and after survey defendant no.4 has to give notice to the tenants for shifting and even if the tenants fail to relocate in temporary alternate accommodation, then notice under section 95-A(2) of the Act will be issued.
10. In paragraph 37, the plaintiffs asserted that defendant no.4 has made arrangement of accommodation in red light area where decent family cannot stay or carry on business. In paragraph 40, the plaintiffs expressed their readiness and willingness to hand over suit premises for redevelopment, provided alternate accommodation is given on the site itself, viz. suit premises. In short, Mr. Reis submitted that in principle, the plaintiffs have no objection for redevelopment provided they are given temporary alternate accommodations on the site itself, ie suit premises.
11. Mr. Reis submitted that clause 16 of NOC dated 28.6.2012 provides that NOC for full and final occupation certificate for any free sale building/component will be given only after all the old occupants, as certified by the Executive Engineer, "D"2 Division/MBRRB including those who may be staying in the Board's transit camps, have been rehoused in the newly constructed buildings by complying with the requirements as stated in sr.no.15(a) to (d) therein and only after surrendering surplus built up area as per IIIrd schedule of the Act. He submitted that unless defendant no.4 fulfills condition no.16, NOC for full and final occupation certificate for any free sell building/component will not be issued. Mr Reis relied upon decision of the Division Bench of this Court in the case of Radhika George Vs. Maharashtra Housing and Area Development Authority, 2012(5) Mh.L.J. 229 and in particular paragraph 22 thereof. He also relied upon the decision of the Division Bench of this Court in the case of Suresh R Dubey Vs. The State of Maharashtra (Writ Petition No.1362 of 2008 decided on 19.6.2008) and in particular paragraphs 6, 15 and 22 thereof.
12. Mr Reis submitted that in terms of the decision of the Division Bench of this Court in the case of Radhika George (supra), what the authority needs to examine is (i) whether its a collective decision, i.e. whether 70% of members have consented, (ii) whether permissions like the NOC are in order and (iii) whether the developer has provided adequate transit accommodation. Once the authority under section 95-A finds that these requirements are fulfilled, all that it does is to direct the members to shift to the transit accommodation awaiting reconstruction. He further submitted that the Executive Engineer who passes order under section 95-A is not a judicial officer equipped to decide complicated question of law relating to dispute as to title etc. The proceedings under section 95-A cannot be converted into a civil trial. He further submitted that on 28.6.2012 NOC for redevelopment is issued to defendant no.4, Municipal Corporation for Greater Mumbai (for short, 'Corporation') has also sanctioned plans and issued IOD on 22.1.2014. Out of 231 occupants/tenants, 198 occupants/tenants representing 85% have vacated the premises and they have been paid Rs.15000 to 18000/- per month in lieu of temporary transit accommodation.
13. Mr. Reis submitted that initially a show cause notice was issued to the occupants on 5.5.2014. The Executive Engineer, MBRandR Board heard the parties between 17.5.2014 and 2.6.2014. On 2.6.2014, he passed orders directing the occupants/tenants to cooperate and vacate their premises. The plaintiffs preferred Appeals before Deputy Chief Engineer, (Zone-II) of MBRandR Board. The Appeals were dismissed on 4.7.2014. Some time in July, 2014, the Executive Engineer verified the transit accommodations whether they are habitable or not. After verification of the transit accommodations, he issued notice dated 18.7.2014 under section 95-A of the Act directing the plaintiffs to vacate the premises and occupy the transit accommodations provided by defendant no.4 in F-21, 5th Floor, M.P.Mill Compound, Tardeo, Mumbai-400 034, within seven days failing which summary eviction action under section 95-A(2) of the Act will be initiated. It is at that stage the plaintiffs instituted the aforesaid suit in the City Civil Court, Bombay and by the impugned order, the learned trial Judge granted ad-interim reliefs. He submitted that the impugned order clearly shows non application of mind and, to say the least, it is perverse. In short, he submitted that without any material on record, the learned trial Judge recorded the findings in paragraph 15 to the effect that defendant no.4, without complying legal provisions, induced most of the tenants to vacate and obtained NOC from MHADA and that NOC issued by MHADA is prima facie illegal. While recording prima facie findings the learned trial Judge failed to appreciate that the tenants who vacated the premises in their occupation (198 in number) were not before the Court. The learned trial Judge has also not assigned any reason for holding that the NOC issued by the MHADA is prima facie not legal. The learned trial Judge has recorded in paragraph 14 that the decision of the Division Bench of this Court in Suresh Dubey case (supra) is not applicable to the present matter. Mr. Reis submitted that the impugned order cannot be sustained and is liable to be vacated.
14. On the other hand, Mr. Khobragade supported the impugned order. He submitted that defendant no.4 submitted the scheme for redevelopment of the suit premises in 2006 as per modified Regulation 33(7) of the Development Control Regulations for Greater Mumbai, 1991 (for short, 'Regulation'). Along with that application, defendant no.4 submitted indemnity bond dated 12.9.2006 in Annexure III. Clause 2 thereof records that he agreed to withdraw, settle any suit, if any, filed in any court or any litigation in process, before NOC is granted by the Board and shall furnish certified/duly attested copy of the same. Mr Khobragade submitted that the suits are pending and thus defendant no.4 has not complied clause 2 of the indemnity bond. Mr. Khobragade submitted that along with the application, defendant no.4 filed affidavit-cum-undertaking dated 12.9.2006 in Annexure II. He submitted that under clause 4, defendant no.4 undertook to allot tenements in the constructed building to occupiers as per list certified by the Board. In terms of clause 7, he undertook to provide temporary alternate accommodation during the period of reconstruction and as far as possible temporary transit camp shall be constructed on the same plot or land situated elsewhere belonging to him.
15. Mr. Khobragade submitted that initially the proposal was submitted by defendant no.4 for redevelopment of the suit premises. Along with that proposal, defendant no.4 had submitted irrevocable consent of 198 occupants. The said proposal was, however, returned to defendant no.4. Defendant no.4 thereafter submitted revised proposal. However, at that time defendant no.4 did not submit fresh consent of 198 occupants. He submitted that in terms of clause 9 of NOC dated 28.6.2012, defendant no.4 is obliged to provide temporary transit accommodation to the occupiers of old building. Such transit camps, if constructed on the said plot, should be demolished within one month from the date of occupation certificate granted by the Corporation for the reconstructed building. In terms of clause 17, if it is subsequently found that documents/information submitted along with the application for NOC are incorrect or forged, misleading, then the NOC will be cancelled and NOC holder will be held responsible for the consequences/losses if any thereof if arises in future. He, however, fairly stated that till date the NOC is not revoked.
16. Mr. Khobragade submitted that in terms of clause 21 of the NOC, the NOC holder has to make arrangement in respect of tenant/occupant who is staying in MBRR Board's transit camp to shift them from transit camp and provide them suitable alternate accommodation from the date of issue of NOC till rehabilitating them in newly constructed building at his risk and cost. In terms of clause 22, defendant no.4 has to execute agreement with all tenants/occupants stating therein the rehabilitation area agreed to be provided apart from other terms and conditions. The copy of such agreement shall be submitted to MHADA before issue of commencement certificate by the corporation.
17. Mr. Khobragade submitted that clause 3 of occupants irrevocable consent in Annexure V records the undertaking of defendant no.4 to shift to the temporary transit accommodations that are made available on the same site or adjoining property or elsewhere by the owners/developers/or his/ her nominees or assignee, during the period of construction on the captioned property. In terms of clause 3 of the agreement for providing permanent alternate accommodation, the tenant/occupant will not be required to bear any costs in respect of the transit accommodation and the said transit accommodation shall be constructed in a portion of the property or the adjoining or nearby property by the owners/developer after obtaining requisite permission from the Corporation and or any other authorities. He further submitted that on 27.8.2007 Memorandum of Understanding was entered into by and between defendant no.4 and the tenants of building no.443 C and D. Clause 6 thereof provides that temporary transit camp shall be constructed within six months from obtaining necessary permission from the Corporation on the same lay out. Mr Khobragade, therefore, submitted that combined reading of all these clauses clearly shows that defendant no.4 is obliged to provide temporary transit accommodation in the suit premises itself. Since defendant no.4 is not ready and willing to offer temporary transit accommodation in the suit premises itself, plaintiffs are objecting to the development scheme. Mr Khobragade submitted that the learned trial Judge has merely granted the ad-interim order pending Motion and the findings recorded by the learned trial Judge are prima facie findings and, therefore, no case is made out for interfering with the impugned order.
18. I have considered the rival submissions made by the learned counsel appearing for the parties. I have also perused the material on record. As noted earlier, the plaintiffs have repeatedly asserted in the Plaint itself that in principle they are not objecting to redevelopment scheme. Mainly, their grievance appears to be that they are not provided temporary alternate accommodation in the suit premises itself. The question is whether insistence of the plaintiffs to offer temporary alternate accommodations in the suit premises is justified or not? Perusal of various clauses referred herein above, prima facie, indicates that defendant no.4 as a developer has to provide temporary transit accommodation on the site or in any other area. In other words, these clauses do not lay down that the developer has to provide temporary transit accommodation in the suit premises itself.
19. As noted earlier, initially a show cause notice was issued to occupants on 5.5.2014. The Executive Engineer, MBRandR heard the parties between 17.5.2014 and 2.6.2014. On 2.6.2014, he passed orders directing occupants to cooperate and vacate their premises by accepting either temporary transit accommodations offered by defendant no.4 or in lieu thereof accepting monthly compensation. Aggrieved by that order, the plaintiffs preferred Appeals before Deputy Chief Engineer (Zone-II) of MBRandR Board. The Appeals were dismissed on 4.7.2014. While dismissing the Appeals, Deputy Chief Engineer directed Executive Engineer/D-2 Zone to verify whether 20 tenements which were taken by defendant no.4 by entering into agreements, are habitable or not and thereafter issue notice to occupants for shifting to the transit accommodations failing which action under section 95-A of the Act be initiated. In pursuance thereof, the Executive Engineer verified whether the transit accommodations are habitable or not. After verification of transit accommodations he issued notice dated 18.7.2014 under section 95-A of the Act directing the plaintiffs to vacate the premises and occupy transit accommodations provided by defendant no.4 in F-21, 5th Floor, M.P.Mill Compound, Tardeo, Mumbai-400 034, within seven days failing which summary action under section 95-A(2) of the Act will be initiated. Thus, defendant no.4 has provided temporary transit accommodations to the plaintiffs. In paragraph 5 of the impugned order, the learned trial Judge also recorded the submissions advanced on behalf of MHADA that the plaintiffs never approached to the authorities of MHADA with grievance that the transit accommodations offered by defendant no.4 are not habitable. The learned trial Judge, without considering the submission advanced on behalf of MHADA which is recorded in paragraph 5, observed in paragraph 10 that grievance of the plaintiffs is that defendant no.4 is providing transit accommodations in red light area and the transit accommodations are not in habitable condition.
20. That apart, Section 95-A(1)and (2)read as under :-
"95-A Summary eviction of occupiers in certain cases. -
(1) Where the owner of a building or the members of the proposed co-operative housing society of the occupiers of the said building, submits a proposal to the Board for reconstruction of the building, after obtaining the written consent of not less then 70 per cent of the total occupiers of that building and a No Objection Certificate for such reconstruction of the building is issued by the Board to the owner or to the proposed co-operative housing society of the occupier, as the case may be, then it shall be binding on all the occupiers to vacate the premises:
Provided that, it shall be incumbent upon the holder of such No Objection Certificate to make available to all the occupants of such building alternate temporary accommodation.
(2) On refusal by any of the occupant to vacate the premises as provided in sub-section (1), on being approached by the holder of such No Objection Certificate for eviction of such occupiers, it would be competent for the Board, notwithstanding anything contained in Chapters VI and VII of this Act to effect summary eviction of such occupiers."
21. Section 95-A is in Chapter VIII which is entitled as 'Repairs and Reconstruction of dilapidated buildings'. Chapter VIII contains Sections 74 to 103. Section 90 deals with temporary accommodation pending structural repairs. Sub-section (8) thereof reads as under:
"(8) The occupier, whether he accepts the accommodation or makes his own arrangement, shall also be liable, until his tenancy continues, to pay to the owner his proportionate contribution for the cess as if he had not temporarily vacated the premises and shall be liable for all the consequences if he fails so to pay."
22. Perusal of extracted provision shows that whether the occupier accepts the accommodation or makes his own arrangement, is also liable, until his tenancy continues, to pay to the owner his proportionate contribution for the cess as if he had not temporarily vacated the premises and is liable for all the consequences if he fails to pay. In other words, the above provision clearly recognizes two things: (1) acceptance of temporary transit accommodation or (2) making his own arrangement. In other words, occupier after accepting the compensation in lieu of providing temporary alternate accommodation can make his own arrangement. Prima facie, I see no good and valid reason for not applying /invoking Section 90(8) while construing proviso to Section 95-A of the Act. The conjoint reading of these provisions, prima facie indicates that holder of NOC may either provide alternate temporary accommodation or pay compensation in lieu thereof for occupiers making their own arrangement.
23. In the case of Radhika (supra), the Division Bench has observed that what the authority needs to examine is (1) whether it's a collective decision, i.e. whether 70% of members have consented, (2) whether permissions like the NOC are in order, and (3) whether the developer has provided adequate transit accommodation. Once the authority under section 95-A finds that these requirements are fulfilled,all that it does is to direct the members to shift to the transit accommodation awaiting reconstruction. The Division Bench has further held that the proceedings under section 95-A of the Act cannot be converted into a full fledged judicial proceedings as if the authority is trying a civil suit. More so, when the authority, i.e. Executive Engineer passing the order under section 95-A is not a judicial officer.
24. As noted earlier, in the present case, show cause notice was issued to the plaintiffs on 5.5.2014. Hearing took place before the Executive Engineer between 17.5.2014 and 2.6.2014. On 2.6.2014 the Executive Engineer passed orders directing the plaintiffs to cooperate and vacate their premises. Aggrieved by that decision the plaintiffs preferred Appeals before Deputy Chief Engineer, (Zone-II) of the MBRandR Board. Those appeals were dismissed on 4.7.2014. Prima facie, no material is brought on record by the plaintiffs challenging orders dated 2.5.2014 and 4.7.2014. The plaintiffs have, however, challenged the notice dated 18.7.2014 issued by the Executive Engineer which was issued in pursuance of the orders dated 2.6.2014 and 4.7.2014. Perusal of the prayers in the Plaint as also Motion indicates that the plaintiffs are seeking stay of implementation of the scheme which was approved as far back as on 28.6.2012 as also they are praying stay of implementation of the said scheme. What is of significance is that out of 231 occupants, 198 occupants representing 85%, have already vacated the premises in their respective occupation and defendant no.4 is paying them Rs.15000/- to 18,000/- P.M. and it is only 20 persons who have challenged the scheme and, that too, mainly on the ground that defendant no.4 is not offering temporary transit accommodation in the suit premises itself.
25. In the case of Suresh Dubey (supra), the Division Bench observed in paragraph 15 that in order to exercise summary powers the MHADA has to find out whether the owner of the building or the members of the proposed cooperative housing society of the occupiers of the said building have obtained consent of 70% of the total occupiers of the said building to the said project. If these conditions are satisfied then MHADA is under obligation to give a no objection certificate to the said project and once the no objection certificate is given by the MHADA then the other persons who are not consenting parties to the said project at that point of time ar also bound by the said project and they have to submit to the project. Section 95-A(1), extracted herein above, also lays down that after obtaining the written consent of not less than 70% of the total occupiers of the building and no objection certificate for such reconstruction of the building is issued by the Board to the owner or to the proposed cooperative housing society of the occupier, as the case may be, then it shall be binding on all the occupiers to vacate the premises. Proviso thereto lays down that it shall be incumbent upon the holder of such no objection ceritifcate to make available to all the occupants of such building alternate temporary accommodation. I have already dealt with this aspect. I have also considered Section 95-A and 90(8) of the Act.
In the present case, 85% occupiers have given consent. It is not disputed that as on date, NOC issued on 28.6.2012 is not cancelled. It is also not disputed that defendant no.4 has offered Rs.15000/- to 18000/- per month as and by way of compensation to 198 occupiers and that they have accepted the same and have vacated the premises in their occupation. Defendant no.4 also expressed his readiness and willingness, as more particularly recorded in the order dated 9.9.2014, to make arrangement. In this background, if the impugned order is tested, in my opinion, the learned trial Judge has failed to consider the matter in proper perspective. In fact, in paragraph 10 of the impugned order, the learned trial Judge clearly recorded that in view of Section 90 of the Act, transit accommodation may not be in the same locality. He however proceeded to observe that defendant no.4 is providing transit accommodation in red light area. The learned trial Judge failed to consider the offer made by defendant no.4 that if they are not agreeable for temporary transit accommodation he was ready and willing to offer compensation. In fact, in the order dated 9.9.2014 I have recorded that defendant no.4 is ready to offer Rs.18000/- per month to plaintiffs no.2 to 20 and on that day, plaintiffs no.2 to 20 accepted that offer. However, now today they have turned around and submitted that they are not ready and willing to accept that offer. In paragraph 11 the learned trial Judge observed that defendant no.4 has to first ensure that tenants are provided with permanent occupation in lieu of constructed building with free costs and for that purpose he has to execute agreement to that effect.
MrReis submitted that the plaintiffs are not consenting to the proposed scheme and, therefore, there is no question of entering into registered agreements with them. However, as noted in the order dated 9.9.2014 Mr Reis has also handed over agreements duly signed by defendant no.4 to Mr Khobragade. In other words, defendant no.4 showed his readiness and willingness to enter into registered agreements even with the plaintiffs subject to their vacating the suit premises upon accepting monthly compensation. The finding given by the learned trial Judge in paragraph 11, therefore, cannot be sustained. In paragraph 12, the learned trial Judge committed serious error in observing that the authorities of MHADA have blindly issued notice under section 95-A without verifying interests of tenants whether they are protected or not. To say the least, the said finding is perverse. The learned trial Judge failed to appreciate that before issuing notice under section 95-A, show cause notice was issued on 5.5.2014. Hearing took place between 17.5.2014 and 2.6.2014 and thereafter notice under section 95-A was issued on 18.7.2014. The plaintiffs have not challenged the orders dated 2.6.2014 and 4.7.2014. Even otherwise, prima facie I find that the notices under section 95-A of the Act were issued after giving sufficient opportunity to the plaintiffs. The findings recorded in paragraph 12, therefore, cannot be sustained.
26. In paragraph 13, the learned trial Judge further observed that the building in questions wherein the plaintiffs are residing seems to have repaired in the year 1997-98 and, therefore, it is not must or immediate to evict the plaintiffs from the suit premises. The learned trial Judge failed to appreciate that out of 231 occupants, 198 occupants have already vacated the suit premises and at the behest of 20 occupants, the entire project is sought to be stalled. The said finding again clearly shows non application of mind on the part of the learned trial Judge. In paragraphs 14 the learned trial Judge, without giving adequate reasons, has tried to distinguish the decision of the Division Bench of this Court in the case of Suresh Dubey. The reasons given in paragraphs 10 and 14 are without considering the submissions made on behalf of MHADA, as recorded in paragraph 5 of the impugned order that the plaintiff never approached to MHADA authority with grievance that the transit accommodation which defendant no.4 is providing, is not livable. The said submission is not dealt with in paragraphs 10 and 14 of the impugned order. In any case, notice dated 18.7.2014 mentioned that defendant no.4 has provided transit accommodations in F-21, 5th floor, M.P.Mill Compound, Tardeo, Mumbai 400 034. Now, plaintiff no.1 has also accepted Gala in M.P.Mill compound.
Finally in paragraph 15 the learned trial Judge observed that defendant no.4, without complying the legal provisions, induced 198 persons to vacate the premises and obtained NOC from MHADA and the NOC is prima facie not legal one. As noted earlier, none of the 198 persons who have given consent and who have vacated, was before the Court. In fact, there is no material for recording any finding that defendant no.4 induced these persons for vacating the premises in their possession. Equally, there is no material for recording the finding that the NOC issued by the MHADA is prima facie illegal. In the first place, the findings recorded by the learned trial Judge are without any reasons and secondly it also shows non application of mind. To say the least, the said findings are perverse.
27. When the Court is considering application for grant of injunction, it is obliged to consider three aspects, namely (i) whether a prima facie case is made out; (ii) whether balance of convenience lies in favour of the applicant for grant of interim injunction and (iii) whether irreparable loss and hardship will be caused to the applicants if injunction is not granted. Perusal of the impugned order shows that the learned trial Judge has not considered any of these aspects while granting ad-interim injunction. On this count also, the impugned order cannot be sustained.
28. In the case of Rajendra R. Singh Vs. Municipal Corporation of Gr Bombay, AIR 2003 Bombay 392, learned Single Judge considered the question as regards maintainability of the Appeal against orders passed by the Court declining to grant exparte ad-interim relief and/or postponing consideration of grant of ad-interim relief till service was effected on the other side. After considering the decisions of various High Courts, as also of the Apex Court in the case of A. Venkatasubiah Naidu Vs. S. Chellappan, AIR 2000 SC 3032, learned Single Judge held that the Appeal is maintainable. In paragraph 19 the Apex Court observed thus :
"It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said rule is the repository of the power to grant temporary injunction with or without notice interim or temporary, or till further orders or till disposal of the suit. Hence, any order passed in exercise of the aforesaid powers under rule 1 would be appealable as indicated in Order 43 Rule 1 of the code. The choice is for the party affected by the order either to move the appellate court or the same Court which passed the ex parte order for any relief."
In view of the above Judgment, this Appeal is maintainable against grant of ad-interim injunction by the trial Court.
29. In the case of Wander Limited and another Vs. Antox India Private Limited, 1990 (Supp.) SCC 727, the Apex Court in paragraph 14 has observed as under:
".........the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Limited Vs. Pothan Joseph, (1960) 3 SCR 713, (SCR 721)
"....These principles are well established, but as has been observed by Viscount Simon in Charles Osenton and Co. V. Jhanton, 1942 AC 130' ... the law as to the reversal by a court of appeal of an order made by a Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."
30. The said position was reiterated subsequently by the Apex Court in the case of Ramdeo Food Products (P) Ltd. Vs. Arvindbhai Rambhai Patel and Ors., (2006) 8 SCC 726, and in particular paragraphs 125 to 127 thereof.
31. In the light of the tests laid down by the aforesaid decisions, if the facts of the present case are considered, I find that the learned trial Judge has exercised the discretion arbitrarily or capriciously or perversely. I also find that the trial Court has ignored settled principles of law regulating grant or refusal of interlocutory injunctions. In the facts and circumstances of the present case, I find that the learned trial Judge has not exercised the discretion reasonably and in a judicial manner. For all these reasons, the impugned order cannot be sustained and is, therefore, liable to be quashed and set aside.
32. The Appeal is allowed. The impugned order dated 1.8.2014 is quashed and set aside. The Draft Notice of Motion taken out by the plaintiffs is dismissed. Plaintiff no.1 is at liberty to accept alternate accommodation offered by defendant no.4. In view of disposal of the Appeal, Civil Application (ST) No.21164 of 2014 does not survive and the same is disposed of.
33. At this stage, Mr. Khobragade orally applies for staying this order for a period of four weeks from today. Mr Kadam opposes this application on the ground that 198 occupants have already shifted elsewhere and defendant no.4 is paying compensation between 15000/- - 18000/- per month to them. Mr Khobragade states that plaintiffs no.2 to 20 will have to make arrangement for challenging this order and, therefore this order may be stayed for a period of four weeks from today. Mr Khobragade assures that within two weeks from today, the plaintiffs and all the adult family members residing with them will file undertakings in this Court after giving advance copy to the other side, incorporating therein:
(i) that they are in possession of the suit premises and nobody else is in possession;
(ii) that they have neither created any third party interests nor parted with possession;
(iii) that they will hereafter neither create third party interests nor part with possession;
(vi) that in case they are unable to obtain suitable orders from the higher Court within four weeks from today, they will handover vacant and peaceful possession of the premises in their occupation to defendant no.4.
34. Subject to the plaintiffs and all the adult family members residing with them filing undertaking in the aforesaid terms within two weeks from today, after giving advance copy to the other side, this order shall remain stayed for a period of four weeks from today.
35. It is made clear that in case the plaintiffs do not file undertaking within the stipulated period and/or commit breach of any of the conditions of the undertaking, defendant no.4 and the authorities of MHADA will be at liberty to proceed in the matter in accordance with law. It is also made clear that in case the plaintiffs do not get suitable orders from the higher Court within four weeks from today and do not vacate the suit premises in their respective occupation, defendant no.4 and the MHADA authorities would be at liberty to proceed with the matter in accordance with law. Order accordingly.