Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 IN NM NO.30718 IN SUIT 192019
MHCC010013632018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.307 OF 2018
IN
SUIT NO.1920 OF 2019
Dattatray Sadashiv Ajab ] ...Plaintiff.
Versus
Narayan Sadashiv Ajab & Others ]…Defendants.
Appearance:
Ld. Advocate Rakesh Agrawal for Plaintiff.
Ld. Advocate Suresh Muluak for Defendant No.1.
Ld. Advocate Trivedi for Defendant No.2.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 02/02/2023
ORAL ORDER
1) Plaintiff has taken out present notice of motion for grant of
interim relief of staying the effect and operation of the impugned
gift deed dtd.19/1/09 and for directing defendant No.1 to
submit/deposit the original gift deed dtd.19/1/09 with the
Registrar of this court till disposal of the suit.
2) Perused the notice of motion, affidavit in support of notice of
motion, affidavit in reply of defendant No.1, affidavit in reply of
defendant No.2, affidavit in rejoinder of plaintiff and record.
Heard arguments advanced by Ld Advocate for plaintiff, Ld
Advocate for defendant No.1 and Ld Advocate for defendant No.2.
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As none present for defendant No.3, defendant No.3 could not be
heard. Court has gone through the written notes of arguments of
plaintiff and written notes of arguments of defendant No.1.
3) Ld. Advocate for plaintiff argued that defendant No.1 is real
brother of plaintiff. In the slum redevelopment scheme suit
premises was allotted to the father of plaintiff and defendant No.1
Mr. Sadashiv Rambhau Ajab in lieu of old premises. Old premises
was ancestral property of plaintiff and defendant No.1. Possession
of the suit premises was handed over to the father of plaintiff on
15/8/1999 as permanent alternate accommodation in lieu of the
old premises under the slum rehabilitation scheme. As per section
3E of the Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act 1971 (hereinafter referred as Slum Act),
tenaments/premises allotted cannot be transferred by way of sale,
gift, exchange, lease or otherwise for a period of first ten years
from the date of allotment of the tenament. Moreover, father of
plaintiff and defendant No.1 Sadashiv Rambhau Ajab was not
competent/entitled to transfer suit premises by gift deed dtd.
19/1/09. Moreover, at the time of execution of purported gift deed
Mr. Sadashiv Rambhau Ajab was not in good state of mind.
Moreover, father of plaintiff had not obtained permission of the
Slum Rehabilitation Authority. Therefore, prima facie the
impugned gift deed dtd.19/1/09 is void. The relief of declaration
and cancellation of gift deed sought in the present suit can be
granted only by civil court and competent authority has no
jurisdiction to grant reliefs prayed in the suit. Therefore, this court
has jurisdiction. As the purported impugned gift deed dtd.19/1/09
is prima facie void, the impugned gift deed is left outstanding may
cause serious injury to plaintiff. Plaintiff was in exclusive
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possession of the old premises since 1978 and plaintiff is in
exclusive possession of suit premises since its allotment. Therefore,
Ld. Advocate for plaintiff prayed that notice of motion be made
absolute in terms of prayer clause (a). Plaintiff did not press for
the relief in terms of prayer clause (b) of the notice of motion. Ld.
Advocate for plaintiff kept his reliance on the following citations:
1) Housing Development and Infrastructure Ltd & Anr. vs. State of
Maharashtra and Ors of Hon'ble High Court in W.P. No.2499/13
dtd.6/9/10th February 2015.
2) Khema & Ors vs Bhagwan & Ors, 1995(2) R.R.R. 560:1995 AIR
(Rajasthan) 94.
Court has gone through the observations made therein.
4) On the other hand, Ld. Advocate for defendant No.1 argued
that old premises was the self acquired property of his father Mr.
Sadashiv Rambhau Ajab. The suit premises was allotted to his
father in Slum Rehabilitation Scheme. Therefore, Mr. Sadashiv
Rambhau Ajab was the exclusive owner of the suit premises and he
was competent and entitled to dispose off the suit premises. Suit
premises was allotted as per agreement dtd. 19/9/97 and
possession of suit premises was handed over as per letter
dtd.15/8/99. The date of allotment is not 15/8/99 and it is the
date of agreement dtd.17/9/97. Father of plaintiff was of sound
mind at the time of execution of impugned gift deed. Suit premises
was not transferred within first ten years from the date of
allotment by the impugned gift deed. Moreover, transfer to the
legal heir during the first ten years is permissible as per
Development Control Regulation 33(10) to the Slum Act and
Apendix IV to the Slum Act Sub Rule 18. Therefore, prima facie
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the gift deed is valid and legal. Moreover, as per section 42 of
Slum Act this court has no jurisdiction to entertain and try the
present suit and competent authority is empowered to evict the
unauthorized occupant if the transfer is in contravention of
provision of section 3E of the Slum Act. Therefore, Ld. Advocate
for defendant No.1 submitted that notice of motion be dismissed.
5) On the other hand, Ld. Advocate for defendant No.2 argued
that section 3E of Slum Act does not totally bar the transfer of
tenament allotted under slum rehabilitation scheme. Development
Control Regulation also makes provision for restriction on transfer
of tenaments. Remedy for violation of provision of section 3E of
Slum Act is provided under clause 2 of section 3E itself and
competent authority is empowered to decide whether the transfer
of the tenaments allotted under Slum Act is in contravention of
above provision and to direct the eviction of person in possession
of such tenament. Therefore, in view of the section 42 of the Slum
Act this court has no jurisdiction to entertain and decide the suit.
Hence, Ld. Advocate for defendant No.2 submitted that notice of
motion be dismissed.
6) Following points arise for determination and court has recorded
its decision thereon for the reasons stated there under:
Points Decision
(i) Whether prima facie case lies in favour of plaintiff ? Yes.
(ii) Whether balance of convenience lies in favour of
plaintiff ?
Yes.
(iii) Whether plaintiff will suffer irreparable loss if the
interim relief as prayed is not granted?
Yes.
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(iv) What Order? As per final
order.
REASONS
AS TO POINT NOS.1 to 3:
7) As all these points are interconnected with each other they are
decided simultaneously in order to avoid repetition of facts.
8) From the matter on record it appears that in the present matter
it is admitted fact that the suit premises was allotted under the
slum rehabilitation scheme in lieu of the old premises. As per
plaintiff the suit premises was allotted to the father of plaintiff and
defendant No.1 on 15/8/99 and therefore the transfer of the suit
premises by the impugned gift deed dtd.19/1/09 comes within the
period of first ten years from the date of allotment. From the
affidavit in reply of the defendant No.2 it reveals that defendant
No.2 has admitted the fact that as per allotment letter dtd.15/8/99
suit premises was alloted to the father of plaintiff and defendant
No.1 under slum redevelopment scheme. From the agreement
dtd.19/2/97 prima facie it appears that by the said agreement
developer had only agreed to provide permanent alternate
accommodation to the father of plaintiff and defendant No.1 in
lieu of the old premises and there is no mention of the fact that
suit premises was allotted to the father of plaintiff. From the
agreement prima facie it appears that it was agreed that the
permanent alternate premises in the new building will be allotted
by lottery. Therefore, prima facie there appear no substance in the
contention of defendant No.1 that suit premises was allotted to the
father of plaintiff and defendant No.1 as per agreement
dtd.19/2/97.
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9) On the other hand documents at Exh.6 to the plaint prima facie
reveals that as per the said letter dtd.15/8/99 suit premises was
allotted to the plaintiff under slum redevelopment scheme.
Admittedly possession of the suit premises was given after the
above letter. Therefore, prima facie there appear substance in the
contention of the plaintiff that suit premises was allotted on
15/8/99. As such prima facie transfer of the suit premises by the
impugned gift deed comes within the period of first ten years
commencing from the date of allotment of the suit premises.
Moreover, it is also not the case of defendant No.1 that his father
obtained permission of the Slum Rehabilitation Authority for the
transfer of suit premises by way of impugned gift deed. Slum
Rehabilitation Schemes are prepared for rehabilitation of slums,
hutment colonies in the larger public interest. Section 3E of the
Slum Act has not provided any exception for transfer in favour of
legal heir of the allottee. Regulation 33 (10) clause 1.18 of
Development Control Regulation also provides restriction on
transfer of tenament obtained under slum redevelopment scheme
for a period of ten years from the date of allotment/possession of
tenament. It further provides that in case of breach of conditions
except transfer to legal heirs the tenament will be taken over by
Slum Rehabilitation Authority. Part II of clause 1.18 of Regulation
39 (10) of Development Control Regulations provides
consequences in case of transfer of tenament within ten years from
the date of allotment/possession. Prima facie it does not create any
exception in favour of legal heir of allottee of the tenament for
transferring the tenament obtained under slum rehabilitation
scheme within ten years from the date allotment/possession of the
tenament. Therefore, in the humble opinion of this court prima
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facie there appear no substance in the contention of defendant
No.1 that transfer of tenament obtained under slum
redevelopment scheme in favour of legal heir of the authority is
permissible within first ten years.
10) Provisions of Slum Act are based on public policy. If the
sale/transfer of tenament by the allottees at their whims is
permitted, then it may defeat the public policy. Therefore, transfer
of tenament allotted under Slum Rehabilitation Scheme within the
period of first ten years from allotment of tenaments without
permission of the Slum Authority is against the object and policy of
the Slum Act. Therefore, prima facie there appear substance in the
contention of plaintiff that in view of provision of section 3E of
Slum Act there is complete prohibition on transfer of tenament
alloted under slum rehabilitation scheme for a period of first ten
years commencing from the date of allotment. Therefore, in view
of the provision of section 3 E of Slum Act prima facie there appear
susbtance in the contention of plaintiff that impugned gift deed is
void as it is in contravention of provisions of section 3E of Slum
Act.
11) Plaintiff filed present suit for declaration that document i.e.
purported gift deed dtd.19/1/09 is null and void and for directing
defendant No.3 to cancel the said gift deed. Perusal of provision of
section 3E of Slum Act prima facie reveals that Competent
Authority has no jurisdiction to grant relief prayed in the suit for
contravention of provision of section 3E of Slum Act. The main
relief prayed in the present suit is for the declaration and
cancellation of the gift deed. Prima facie Administrator, Tribunal
does not appear to have jurisdiction under Slum Act to determine
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and grant the relief as prayed in the suit. The present suit is for
enforcing civil right and it is filed under the provision of the
Specific Relief Act. Therefore, prima facie there appear no
substance in the contention of the defendants that in view of
section 42 of Slum Act civil court has no jurisdiction.
12) Considering the matter on record and above discussion there
appear bonafide serious question which requires adjudication in
the present matter. In view of provision of section 3E of Slum Act
and fact that the suit premises is transferred by the father of
plaintiff and defendant No.1 in contravention of provision of
section 3E of Slum Act prima facie the impugned gift deed appears
to be void. Admittedly, plaintiff is in possession of the suit
premises since long and he is one of the heir of Sadashiv Rambhau
Ajab. Therefore, prima facie plaintiff appears to have some legal
rights or interest in the suit premises. The fact that defendant No.1
had filed proceeding under Maharashtra Cooperative Societies Act,
substantiate contention of the plaintiff that if the impugned gift
deed is left outstanding it may cause serious injury to the plaintiff.
Therefore, prima facie case lies in favour of plaintiff. Moreover, as
the plaintiff is in possession of the suit premises more comparative
hardship is likely to be caused to the plaintiff than defendant No.1.
If the effect and operation of the gift deed is not stayed in that case
plaintiff may suffer irreparable loss which cannot be compensated
in terms of money.
13) Considering the matter on record and above discussion court
hold that plaintiff proved that prima facie case and balance of
convenience lies in his favour and he will suffer irreparable loss if
the interim relief in terms of prayer clause (a) of the notice of
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motion is not granted. Therefore, point no. 1 to 3 answered in
affirmative.
As to point No.4
14) Plaintiff has not pressed for grant of relief in terms of clause (b)
of the notice of motion. In view of affirmative decision as to point
No.1 to 3 for the purpose of preventing further alienation of the
property and for preventing dispossession the plaintiff, in the
interest of justice it will be appropriate to grant interim relief in
terms of prayer clause (a) of the notice of motion. As the plaintiff
has not pressed for the interim relief in terms of prayer clause (b),
present notice of motions deserves to be partly allowed in terms of
prayer clause (a) of the notice of motion. Hence, court proceeds to
pass the following order:
ORDER
1) Notice of Motion No. 307 of 2018 is partly allowed.
2) The effect and operation of the impugned Gift Deed
dtd.19/01/2009 is hereby stayed till disposal of suit or further order
whichever is earlier.
3) Notice of Motion No.307 of 2018 is disposed off accordingly.
Date : 02/02/2023. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :02/02/2023.
Typed on :02/02/2023.
Draft given on:03/02/2023.
Checked on :06/02/2023.
Corrected & signed on :06/02/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
8/2/2023 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
2/2/2023.
JUDGMENT/ORDER signed by P.O.
on
6/2/2023.
JUDGMENT/ORDER uploaded on 8/2/2023.
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