Order 1

Order Details: Other
Pdf Text: Ad-Interim in NM No.1189/2019 1 L.C. Suit No.333/2019
(CNR NO. MHCC01-003060-2019)
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
AD-INTERIM ORDER
IN
NOTICE OF MOTION NO. 1189 OF 2019
IN
L.C. SUIT NO. 333 OF 2020
Shri. Deepak Manohar Valanju )...Plaintiff
V/s.
M/s Aalay Developers & Ors. )
....Defendants
APPEARANCE:-
Ld. Adv. Mr. Jubin Dalal for the plaintiff.
Ld. Adv. Mrs. Vidya Vyavahare for the defendant/MCGM.
Ld. Adv. Satish Kekane for the defendant No.1.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 07th NOVEMBER, 2020.
ORAL ORDER
Vide Notice of Motion plaintiff is seeking temporary
injunction restraining defendant No.1 from creating third party right,
title, interest by way of sale, exchange, mortgage, tenancy or otherwise
in respect of free sale building and the rehab building situate and being
constructed on the suit property bearing C.S.No.1871, off. Byculla
Division, known as Sarvodaya Nagar, Farooq S. Umarbhoy Road,
Agripada, Mumbai – 400 011 so also directions to defendant No.1 to
reserve one flat in the rehab and/or free sale building on the aforesaaid
suit premises.
2. Heard both the learned advocates at length. From the
arguments canvassed by both the sides, prima-facie at this stage it is
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not in dispute that defendant No.1 who is developer of the aforesaid
property under the redevelopment project under 33(7) of DC Rules. It
is also further not in dispute that plaintiff was one of the occupant of
the hutment on the aforesaid land under redevelopment. It is also
further not in dispute that initially plaintiff was declared as ineligible
and thereafter he is declared as eligible. There is triparte agreement of
permanent alternate accommodation executed in between plaintiff,
defendant No.1 and defendant No.4 society. It is also further not in
dispute that the rehab building is completed, however, the occupancy
certificate is not yet issued to defendant No.1. The documents to which
learned advocate for plaintiff has drawn my attention clearly reflect
that there is order to accommodate plaintiff in the rehab building or the
free sale building. Thereafter, Mr. Nandkishore Udas, architect engineer
in letter dated 25.10.2018 has informed the Assistant Commissioner
Estate Department that letter dated 23.10.2018 from the registered
structural engineer states that the design of the tenanted building is as
per the stilt + 6 upper floors only. He has clearly stated that foundation
and columns are capable to withstand the proposed stilt + 6 upper
floors load. He also requested not to insist upon for the providing of
additional nine number of rehab tenements. The letter dated
23.10.2018 was enclosed along with this letter dated 25.10.2018. In
reference to above said letters thereafter it appears that the A.C.
(Estate) Department of MCGM vide letter dated 20.03.2020 has clearly
stated that the eight slum dwellers who are declared eligible as per
01.01.2000 cut off policy will be de-linked and the defendant No.1 in
consultation with A.C.E ward and CEO SRA will make arrangement of
alternate accommodation in the form of PAP tenements through Slum
Rehabilitation Authority before requesting for NOC to OC to sale wing.
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3. Learned advocate for plaintiff has vehemently argued that
once plaintiff is declared eligible, he cannot be given PAP tenement.
Plaintiff has to be accomodated in rehab building.
4. It is not in dispute that the rehab building of 23 units is
completed. It is also not in dispute that there is order to accommodate
plaintiff. As discussed above, defendant No.1 is implementing the
project under DC Rules 33 (7) of MCGM. There is clear cut bar to
jurisdiction of Civil Court u/sec.42 of Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment Act, 1971). In the case of
Tulsiwadi Navnirman Coop. Housing Society Ltd., and Ors. V/s. State
of Maharashtra and Ors. Reported in 2008 (1) ALL 318 in paragraph
114(d), 106, & 112 it is clearly observed that -
“114(d). That any complaint about eligibility of slum dwellers,
eligible slum dwellers being denied tenement, developers not
undertaking and completing the project as per the permission
and approval so also within the stipulated time frame, transit
accommodation being unavailable or not provided for etc. Shall
be addressed to this Committee and grievances be looked into
by it accordingly. The courts cannot be approached straightway
unless and untill above mentioned committee is first moved by
the aggrieved person in the form of an application/complaint in
writing. If the grievance is not redressed or
complaint/representation is not attended to, then and in that
event this Court can be approached under Aricle-226 of the
Constitution and not otherwise. Ordinarily, no person can
approach this court directly without exhausting the above
remedy.”
“106. It is not as if there is no remedy at all in the matters
before us. The State Government has a power to issue
directions. We have already referred to the said power in the
Slum Act. The State Government is empowered to direct the
SRA to take such steps as are necessary for sucessful,
meaningful and purposeful implementation of the rehabilitation
scheme meant for slum dwellers. It is not as if the SRA itself is
also powerless. Once it issues a letter of Intent to the Developer,
it can by taking rec5ourse to the terms and conditions thereof,
monitor and supervise the activities of development at site and
can even make suggestions and direct changes. Thus, it is S.R.A.
which has to implement slum rehabilitation scheme. Slum
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Rehabilitation is its duty. It is established by the State
Government. Therefore, within the scheme of the Act, Rules and
the D.C. Regulations so also the terms and conditions of the
letter of intent, the aggrieved party including the slum dweller
can approach the slum rehabilitation authority and seek
redressal of any of the grievances. If the S.R.A. refuses to
intervene, then, the State Government can be approached. If the
State Government refuses to take congnizance of the grievances
and fails to exercise its powers in that behalf, then, recourse to
a writ petition is permissible, depending upon other facts and
circumstances. Therefore, we are of the view that the
submission that there is no alternate remedy or absence of
corrective machinery is not well founded. In such circumstances,
we do not find that writ petition is maintainable straightway.
Once we are of the view that corrective mechanism is available
then, we cannot render such as conclusion.”
112. Compelling the parties to file suits would neither be
efficacious, alternate remedy nor would meet the ends of justice
in all cases. The controversies in such cases are best resolved at
the administrative level itself as the cause of action is founded
on the inaction, incorrect action or colourable exercise of
powers by the authorities. The records of the authorities and
their action bases upon such matter can best be corrected in
accordance with the established percepts of administrative
functioning and executive action at different levels of the
departments within the frame work of the statute.”
5. It is not the case that learned counsel for plaintiff is not
aware of this legal position. Even then plaintiff has knocked the doors
of this court without exhausting the remedy before the high power
committee. When learned counsel for plaintiff was questioned with
respect to legal position, he argued that in his opinion, if the dispute is
in between slum dwellers i.e. plaintiff and the MCGM then there would
be bar. I do not agree with this submission, in light of following
observations in paragraph-118 (D) of the aforesaid citation.
It is clearly observed in paragraph-118 (D)that-
“118 (D). As far as disputes and questions involving the
slum dwellers and Slum Rehabilitation Authority/Public Body/
State, Cooperative Housing Society of Slum Dwellers and
Developers Registered Cooperative Housing Society of Slum
Dwellers on one hand and proposed Cooperative Society on the
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other, Developers and S.R.A./State, a Writ petition under
Article 226 of the Constitution of India Would not lie or would
be entertained unless and until the parties exhause the remedy
of approaching the High Powered Committee referred to above.”
6. If all the observations in aforesaid citation are taken into
account, it can be safely concluded that plaintiff has to exhaust his
remedy before the high power committee and that his grievance being
not redressed before high power committee and state government only
then plaintiff can knock the doors of the court.
7. In present case, as discussed above, the plaintiff is declared
eligible for getting permanent alternate accommodation. Similarly, on
the other hand there is the letter from structural engineer stating that
rehab building cannot bear the load. There are circulars and
notifications on this aspect which is totally the domain of the
concerned authority. This court cannot be full fledged authority to deal
with all of them. In order to, avoid the flooding of cases in court with
respect to such grievances, in aforesaid citation, high power committee
is formed. In light of aforesaid background, plaintiff will get proper
relief before the high power committee. For all aforesaid discussion,
and there being bar to jurisdiction of this court, plaintiff is not entitled
to get ad-interim relief. In result, I proceed with following order -
ORDER
Prayer of plaintiff with respect to Ad-interim relief is rejected.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 07.11.2020 City Civil Court, Gr. Bombay
Directly Dictated on Com :07.11.2020.
Checked on :07.11.2020.
Signed on :07.11.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 24.11.2020, 12.54 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
07.11.2020
JUDGMENT/ORDER signed by P.O.
on
07.11.2020
JUDGMENT/ORDER uploaded on 24.11.2020
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