Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 26.03.2019
Registered on : 18.04.2023
Decided on : 20.02.2024
Duration : 04 Y : 10 M : 25 D
EXHIBIT-
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 1066 OF 2019
(C.N.R. NO. MHCC01-003434-2019)
Mrs. Sunanda Salunkhe, ]
Age 59 years, ]
R/a. : Room No.24/37, Railway Police ]
Lines, Pantnagar, Ghatkopar, ]
Mumbai- 400 075 ] ... Plaintiff.
V/s.
1. Shanti Sagar CHS, ]
A society registered under the Maharashtra ]
Co-Operative Society Act, Having address ]
at Shanti Sagar Police CHS Ltd., Ramabai ]
Ambedkar Marg, Ghatkopar (W), ]
2. Mr. Jalinder Satpute, Adult ]
R/a. Flat NoA-2, 701, Shanti Sagar Police ]
CHS Ltd. Ramabai Ambedkar Marg, ]
Ghatkopar (W), Mumbai – 400 075. ]
3 The Joint Registrar, SRA ]
Slum Rehabilitation Authority ]
A Government body having registered ]
Address at Bandra (East), Mumbai – 50 ] ...Defendants.
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Appearance :
Advocates Mr. Suraj Almeida Pinto for the plaintiff.
Advocate Mr. Trivedi h/f. Adv. Martina Sakpal for Defendant No.3/SRA.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 20th FEBRUARY 2024.
JUDGMENT
Plaintiff has filed present suit seeking specific performance
of Sale Agreement and for possession of suit property.
2. In short, the case of the plaintiff is as under;
That plaintiff is a police personnel and was employed with the
railway police on compassionate grounds after the death of her husband
and now has retired as a widow with one handicapped son and is
presently residing at the railway quarters which she has to vacate. She
is member-cum-allottee of Room No.402, B/6, Shanti Sagar Police
Housing Society, Ghatkopar (E), Mumbai admeasuring 525 sq. ft.
(Hereinafter referred to as suit property). The defendant No.1 is a
Developer-cum-housing society formed for police members. Defendant
No.2 is also member of defendant No.1 and is in illegal possession of
suit property and defendant No.3 is Government Body regulating
development of slum areas as the scheme was proposed under the Slum
Rehabilitation Scheme.
3. Somewhere in the year 1995 or 96 the Government of
Maharashtra had declared and notified the land in which suit property
is situated for purpose of construction and development of houses for
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low income group of police personnel at low and affordable prices
under police housing scheme. Plaintiff made an application to
defendant No.1 Society for becoming a member. The plaintiff agreed to
pay sum of Rs.4,86,450/- towards the cost of the house and sum of Rs.3
Lacs was paid. After the year 2007, the dispute arose between the
promoter of the said scheme and the scheme was stayed by the
Government of Maharashtra and development of land was stayed until
2007 and therefore, further payment was not made to defendant No.1.
However, it was agreed that the balance payment of the said property
will be paid on the execution of agreement and allotment of flat under
the said scheme.
4. It is further contended that thereafter, the development of
the said project under the said scheme was stalled and halted and
therefore, no further construction was carried out. However, several
tenements in various buildings were completed and not allotted by
defendant No.1. Accordingly, the plaintiff called upon defendant No.1
on several occasions to allot a flat to the plaintiff and deliver possession
to her and enter into and execute an agreement of sale with respect to
the allotted flat and on execution, the plaintiff was ready and willing to
make a balance payment under the scheme for the B-Type flat opted by
the plaintiff. Despite several requests by the plaintiff, defendant No.1
tried to evade the plaintiff and committed breach in their commitment
of allotting the B-Type flat to the plaintiff despite of receiving part
payment towards construction cost of the same. Finally, defendant No.1
vide allotment letter dated 04.01.2019, allotted the plaintiff flat
No.402, situated in building B/6 i.e. the suit property. When plaintiff
tried to enter into the said suit property, it was realized that the same
was locked and when she inquired with defendant No.1, she was
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informed that the same is in possession of defendant No.2 who is
already been allotted another flat and he shall vacate the same as he is
already residing in another flat allotted by the Society. However,
thereafter defendant No.2 did not vacate the said flat and hence,
plaintiff made complaint to various authorities. The Assistant Registrar
of Slum Rehabilitation Authority addressed a letter to defendant No.1
and directed the defendant No.1 to take appropriate steps. Defendant
No.2 did not take any steps for dispossessing defendant No.2 from the
suit property. Thus, plaintiff has performed all her obligations under the
scheme and has made part payment towards the suit property allotted
to her and she is also ready and willing to pay the balance amount of
consideration as agreed under the scheme on execution of sale
agreement by defendant No.1 and on delivery of possession. Since
defendant No.1 failed and deliberately avoided to perform part of their
obligations under the said scheme, plaintiff has constrained to file
present suit. Hence, plaintiff prayed that decree of specific performance
be passed directing defendant No.1 to execute sale agreement in respect
of the said suit property and for directing defendant Nos.1 to 3 to
deliver vacant and peaceful possession of the suit property by
dispossessing defendant No.2 from the suit property.
5. Defendant Nos. 1 to 3 though appeared, failed to file their
written statements on record. Hence, suit came to be proceeded without
written statements of defendant Nos.1 to 3.
6. Perused evidence on record. In view of pleadings, following
issues arises for my determination and I have recorded my findings to
each of them for the reasons stated below.
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Sr.
No.
ISSUES FINDINGS
1. Does plaintiff prove that she was allotted
room No.402, B/6, Shanti Sagar Police
Housing Society, Ghatkopar (E), Mumbai i.e.
Suit property under Police Housing Welfare
Scheme sponsored by Government of
Maharashtra?
In the
Negative.
2. Whether the plaintiff is entitled to Decree of
Specific Performance directing defendant
No.1 to execute Sale Agreement in respect
of suit property with plaintiff as prayed?
In the
Negative.
3. Whether the plaintiff is entitled to decree
directing defendant Nos. 1 to 3 to deliver
vacant and peaceful possession of the suit
property by dispossessing defendant No.2
from the suit property.
In the
Negative.
4. What Order and decree ? As per Final Order
R E A S O N S
AS TO ISSUE Nod.1 and 2 :
7. In support of her contention, plaintiff has filed her affidavit
in lieu of examination-in-chief vide Exh.04 as her sole witness and
thereafter closed her evidence. Further, in support of her claim, she has
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relied upon documentary evidence consisting of original payment
receipts (Exh.06 Colly.), Original Passbook of plaintiff (Exh.08), Letter
dated 24.09.2018 (Exh.09), Original allotment letter of suit property
issued by defendant No.1 Society (Exh.10), Office copy of complaint
made by plaintiff to Senior Police Inspector, Pant Nagar Police Station
(Exh.11), Office copy of notice issued by plaintiff to defendants
(Exh.12), etc. Plaintiff filed her examination-in-chief vide Exh.04. She
has reiterated all the facts stated in the plaint and submitted that decree
as prayed be passed.
8. Plaintiff was cross-examined by advocate for defendant
No.3. Advocate for defendant No.3 resisted the claim of plaintiff on law
points and contended that the suit filed against defendant No.3 is not
maintainable in view of provision of Section 3 (A) of Slum Act. As per
provision of Section 3 (A) of the Slum Act, the Slum Rehabilitation
Authority is to be sued in Corporate name. There is no provision under
the Slum Act which empowers the person to sue the officer or the said
office. Moreover, as per Section 3 (T) of the Slum Act suit or
proceedings can not lie against any person for the act done under the
said act or regulation. The letter dated 25.06.2016 which is addressed
by defendant No.3 is nothing but the act done under the regulations by
which defendant No.3 has directed defendant No.1 to take appropriate
steps. Therefore, suit is not maintainable against defendant No.3.
9. It is further contended that pleadings as well as evidence
and the documentary evidence do not indicate that the building Shanti
Sagar was constructed under the Slum Rehabilitation Scheme. Section
2(hd) define the word ‘the Slum Rehabilitation Scheme’. According to
said definition ‘the Slum Rehabilitation Scheme’ is a scheme notified
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under Section 3(B) of the Slum Act. The declaration is required to be
notified slum scheme under notification by the State of Maharashtra. In
the plaint as well as in the evidence, it is stated that State of
Maharashtra had declared housing scheme for low income group of
police personnel at affordable prices and therefore, society of the poice
personnel was formed which is defendant No.1. It is further pleaded
that to avail the said scheme, the plaintiff agreed to pay sum of
Rs.4,86,450/- towards the cost of construction prices and agreed to
purchase B-Type flat. The plaintiff has given details of payment made by
her to defendant No.1. Thus, plaintiff had agreed to purchase the flat
and the said flat was not given under the Slum Rehabilitation Scheme.
10. Under the Slum Rehabilitation Scheme, alternate
accommodation is given to those slum dwellers who are declared as
eligible slum dwellers and fulfill the criteria of eligibility as set out
under Section 2(c-b) of the Slum Act by competent authority. The DC
Rule 33(100 annexure thereto Rule No.1 laid down the criteria which is
required to be satisfied to get the person declared as eligible. Appendix-
VI to the DC Rule 33 (10) and rule No.1.1 clearly laid down that a
person held eligible in accordance with the provisions of DC Rule (10)
shall in exchange of their structure shall be given free of cost residential
tenement having an carpet area of 269 sq.ft. In the present case, the
plaintiff was neither a slum dweller nor a person allotted tenement
under Slum Rehabilitation Scheme. Thus, the Slum Rehabilitation
Authority is not at all concerned and do not have jurisdiction to take
any steps in respect of a building which is not constructed under the
Slum Rehabilitation Scheme.
11. It is argued on behalf of plaintiff that as deposed by
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plaintiff in her affidavit of evidence, the plaintiff is a police personnel
and member of defendant No.1 Society. In the year 2003, defendant
No.1 vide notification dated 24.03.2003 invited members for purchase
of low and affordable houses under the said scheme and invited
members to avail flat under the scheme and to purchase and make
payment as notified in the said notification for the cost of construction.
Plaintiff has produced on record photocopy of scheme notification dated
24.03.2003 which was given to her by defendant No.1 at the time of
booking the flat. The plaintiff does not have the original as only the
photocopy was given to her and the original is with defendant No.1 at
their office. On the basis of said notification, plaintiff made booking and
made certain payments. It is also argued that plaintiff has produced on
record certain receipts which shows that plaintiff has paid amount of
Rs.1,500/-, Rs.25,000, Rs.25,000/-. Rs.14,200/-, RS.20,760/-,
Rs.70,000/-, Rs.30,192/-, Rs.50,000/- and Rs.50,000/- to defendant
No.1 who has issued receipts to the plaintiff. Said fact can also been
seen from the passbook of plaintiff issued by defendant No.1 Society.
Thus, from the documents, it can be seen that plaintiff had booked flat
with defendant No.1 Society under the Government Scheme and from
the documents of allotment letter (Exh.10) it can be seen that
defendant No.1 had allotted room No.402, B/6 vide said allotment
letter dated 04.01.2019. However, defendant No.2 is illegally occupying
the said room which was allotted to the plaintiff and defendant No.1
and defendant No.3 failed to dispossess defendant No.2 and hand over
possession of the suit property to the plaintiff. Defendant No.1 failed to
execute Sale Agreement with plaintiff and therefore, defendant No.1 be
directed to execute specific performance of agreement of Sale with the
plaintiff.
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12. Now, here it is pertinent to note that, though plaintiff is
seeking specific performance to execute Agreement of Sale from
defendant No.1, there is no document as such entered into between
plaintiff and defendant No.1. Plaintiff claims that defendant No.1 vide
notification dated 24.03.2003 invited members for purchase of houses
under the scheme. Plaintiff has merely produced on record photocopy of
the scheme notification dated 24.03.2003. Plaintiff has failed to
produce on record the original copy of notification. The photocopy of
the alleged scheme notification is not exhibited and same can not be
read in evidence. Further, plaintiff claims that she was allotted suit
property by defendant No.1, however, when she went to the suit
premises, she realized that defendant No.2 was already occupying the
suit premises. Plaintiff has relied upon the possession letter dated
08.01.2019 issued by defendant No.1 Society (Exh.10). On perusal of
Exh.10, it is seen that plaintiff was being given possession of the suit
property on temporary basis for purpose of residence on humanitarian
ground on terms and conditions. Thus, it can be seen that said letter is
not allotment letter but merely letter for giving possession on temporary
basis. Therefore, it can not be said that on the basis of the notification,
the plaintiff was allotted the suit property. Thus, there is no document
on record to show that plaintiff was allotted the suit property by
defendant No.1. There is no agreement or any other document entered
into between plaintiff and defendant No.1 and therefore, there is no
contractual obligation as such so as to seek specific performance of
contract or agreement. Thus, in absence of any documentary evidence
to that effect, it can not be said that there was any enforceable
agreement between plaintiff and defendant No.1 of which plaintiff is
entitled to the specific performance. Hence, I answer point Nos.1 and 2
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in the negative.
AS TO ISSUE No.3 :
13. Plaintiff has sought decree of specific performance directing
defendant No.2 to execute Sale Agreement in respect of suit property,
however, as held above, plaintiff is not entitled to decree of specific
performance as prayed. Plaintiff has also sought decree directing
defendant Nos. 1 to 3 to deliver vacate and peaceful possession of the
suit property by dispossessing defendant No.2 from the suit property.
However, as discussed above it can be seen that defendant No.3 is not
concerned with the scheme as the plaintiff was neither slum dweller nor
person allotted tenement under the Slum Rehabilitation Scheme and
Assistant Registrar do not have any authority to evict any person who is
not occupying rehabilitated building. Further more, as discussed above,
plaintiff has failed to prove that suit property was allotted to her by
defendant No.1 under the Scheme Notification dated 24.03.2003 as
alleged by her. Hence, plaintiff is not entitled to the reliefs as claimed.
Hence, I answer point No.3 in the negative.
AS TO ISSUE NO.4 :
14. In view of negative findings to point Nos.1 to 3, I hold that
suit is liable to be dismissed. In the result, I proceed to pass following
order.
ORDER
1. Suit No.1066 of 2019 is hereby dismissed.
2. No order as to costs of the suit.
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3. Decree be drawn up accordingly.
4. The original documents, if any, be returned to the plaintiff
after the appeal period is over.
5. The suit stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 20.02.2024 Gr.Mumbai.
Dictated on : 20.02.2024
Typed on : 20.02.2024
Signed on : 21.02.2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21.02.2024 At 5.30 P.M. Ms. Manisha Hirole
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
20.02.2024
Judgment/Order signed by P.O. on 21.02.2024
Judgment/Order uploaded on 21.02.2024
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