Order 1

Order Details: Order below exhibit
Pdf Text: Order on Exh.8 ..1.. In N.M No.1152/2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
ORDER ON EXH.8
IN
NOTICE OF MOTION NO. 1152 OF 2018
IN
S.C. SUIT NO. 7603 OF 1989
Ramaswari Kamalashankar Shukla & Ors. ...Plaintiffs.
Versus
Philomina Misquitta and Ors. ...Defendants.
AND
Municipal Corporation of Greater Mumbai. ...Respondent.
Appearance :
Mr. Chirag Balsara A/w Mr. Nikhil Shukla, Advocates for Plaintiff No.5.
Mr. Dalal, Advocate for defendant No. 2.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 12TH MAY, 2021.
ORAL ORDER
The applicant/defendant No. 2 has filed this
application seeking stay to the effect, operation and
implementation of the Consent Terms dated 09.10.2001 as well
as the order disposing of the Suit No. 7603/1989 in terms of the
said consent terms dated 09.10.2001. A temporary injunction is
also sought against the plaintiffs or anybody through them from
taking any steps in furtherance of any rights purportedly created
under said fraudulent consent terms.
2. In brief, the applicant's contentions are that, he and his
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mother have filed a Notice of Motion No. 1152/2018 to set aside
the consent terms on the ground of fraud. The Notice of Motion is
being finally heard. The arguments are virtually completed and
the Advocate for plaintiff No. 5 has sought time to rejoin the
arguments raised by the applicant. The matter was adjourned to
15.04.2021. However, given the recent development due to
pandemic it was adjourned. The plaintiffs are taking advantage
of pendency of this hearing and started construction work on the
suit property despite lockdown. The construction if continued
will change the nature of the suit property causing hardship and
prejudice to the applicant. The land covered by the consent
terms dated 28.10.1983 is not part of the impugned consent
terms dated 09.10.2001. The plaintiffs through M/s. Gyan S.P.
Developer LLP have sought to redevelop entire land covering the
land which was not the part of the suit and the consent terms
dated 09.10.2001. The applicant has filed the documents
revealing discrepancies in the actual area and the area mentioned
in the consent terms. The plaintiffs have started construction also
on the land not belonging to them, but belonging to applicant's
late father. The notice of motion challenging said consent terms
is part heard and so it is necessary to preserve the nature of
property as it is. The mutation entries were challenged by the
applicant before the Sub Divisional Officer, Mumbai Suburban
District (hereinafter referred as, “SDO”). The SDO has stayed the
impugned mutation entries. The plaintiffs are also claiming
rights on land Survey No. 6 (5) which is neither part of the suit
nor the consent terms. The plaintiffs are misusing the consent
terms. Plaintiffs had suppressed the lease created by the
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applicant's father in favour of plaintiff No.1. Therefore, the relief
sought be granted.
3. Plaintiff No. 5 has opposed the application vide reply Exh.9
that, the relief sought in present application as similar to the
relief sought in Notice of Motion No. 1152/2018 in which by
order dated 06.10.2018 the adinterim relief was rejected. Said
order dated 06.10.2018 is not challenged yet. The only change in
circumstance pleaded by defendant No.2 is the construction work
that has commenced on the suit property. Thus, in effect
defendant No. 2 is actually seeking an injunction to stop the
construction work. The construction is being carried out in
pursuant to the Slum Rehabilitation Scheme (the Scheme)
approved by the Slum Rehabilitation Authority (SRA). Thus, in
view of Section 42 of the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971 (hereinafter referred
as, “The Act of 1971”) injunction cannot be granted by this Court.
The defendant had objected the Scheme. His objections were
rejected by the Authorities under the Act of 1971 on more than
one occasions. The defendant has suppressed this material fact
from this Court. The scheme was submitted in the year 2017.
The NOC was granted in February, 2018. In March, 2018
defendant No.2 moved Notice of Motion No. 1152/2018
challenging the consent terms. Thereafter, in July and September,
2018 NOCs were granted in respect of the scheme. Further NOCs
were granted in October and November, 2018. The defendant
No.2 has filed application No.15/2019 before the Apex Grievance
Redressal Committee (hereinafter referred as, “AGRC”)
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challenging the NOC granted to the scheme. The CEO, SRA had
stayed the scheme by an exparty hand written order. It was
challenged by the plaintiffs before the Hon'ble Bombay High
Court by Writ Petition No. 2877/2019 and it was stayed. Later
the CEO, SRA was permitted to withdraw said order and was
directed to consider the scheme. The CEO, SRA after hearing the
parties directed plaintiff No. 5 to get his name mutated on the
Property Card as a precondition to accept the scheme. Said order
was challenged by plaintiff No. 5 by an Appeal before AGRC
which allowed the appeal. Accordingly, SRA accepted the
scheme on 12.03.2020. Said order was challenged by defendant
No.2 vide Writ Petition Lodging No. 785/2020 before the Hon'ble
Bombay High Court. However, he did not move the Hon'ble High
Court for adinterim or interim relief till date. Meanwhile, SRA
approved the letter of intent (LOI) for the scheme on 10.09.2020
in favour of M/s. Gyan S.P. Developer LLP. Thereafter, defendant
No.2 moved an interim application for adinterim relief in Suit
No. 526/2019 before the Hon'ble Bombay High Court. The
Hon'ble Bombay High Court did not grant adinterim relief.
Defendant No. 2 filed an appeal. However, the same was
dismissed by Division Bench of the Hon'ble Bombay High Court
on 22.10.2020. In October, 2020 itself the AGRC dismissed
defendant’s challenge to NOC issued by Joint Registrar. After
rejecting all objections of the defendant, the LOI is issued by the
SRA for implementing the Scheme. The LOI is issued in favour of
Vijay Nagar Rahivashi Vikas Samiti SRA CHS (proposed) which is
a society of Slum Dwellers. Any order in present application
would directly affect the rights of the said society. The defendant
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has deliberately not made said society a party to present
proceedings. Considering the intimation of approval and
permission for construction of Transit Camp given by SRA work
for soil testing and other work has commenced. The defendant
No. 2 was aware of applications by the plaintiff for development
of the suit property and the proceedings as well as rejection of his
applications and relief. However, he has suppressed all these
material facts.
4. Perused. Heard.
5. With consent the application is being disposed of finally
during summer vacation.
6. Advocate for defendant No. 2 submitted that, the
defendants did not press for adinterim relief in Notice of Motion
No. 1152/2018. However, now there is an urgency as the
construction activities have commenced on the suit property.
Therefore, he is seeking an urgent interim relief by present
application. He submits that, the plaintiffs themselves have
admitted that, certain land is excluded from the terms of the
impugned consent terms as well as the conveyance under
challenge. The plaintiffs are thus not entitled to carry on any
construction on such land. The mutation in favour of the
plaintiffs is already stayed. The basis of plaintiffs’ rights i.e. the
consent terms dated 09.10.2001 and the subsequent Conveyance
Deed both are under challenge. The notice of motion is almost
finally heard and the arguments are on the verge of conclusion.
Only the advocate for plaintiff No. 5 has to rejoin the arguments
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advanced by the advocate for defendants. In such circumstances,
the plaintiffs are hurriedly trying to carry out the construction to
prejudice the rights of the defendants. Such an effort may not be
tolerated. He further submits that Survey No. 6 (5) is not part of
the consent terms and conveyance. However, considering the
record available the identity of Survey No. 6/5 cannot be
separated from the lands forming parts of consent terms and
conveyance. In view of this, the construction on entire land
needs to be stayed as it will harm the rights of the defendants on
the lands not covered by the consent terms dated 09.10.2001 and
the conveyance based on it. He further submitted that the
photographs annexed with the application clearly reveal the
hurried efforts of the plaintiffs to change the nature of the
property. According to him, such efforts cannot be allowed to
continue. He further submitted that, during the hearing on
Notice of Motion No. 1152/2018, he has demonstrated how there
is difference in the area of the land in various documents filed on
record which ultimately raises question about genuineness of the
consent terms as well as the conveyance. Therefore, according to
him, the injunction as sought is necessitated. He also submitted
that, the relief which are sought in present application are never
sought by the defendant No.2 in any other proceedings.
7. The advocate for plaintiff No.5 contended that, the
defendant No.2 was aware of grant of LOI for the construction.
The LOI is issued in January, 2021 itself. However, defendant
No.2 has come before the Court belatedly. He is guilty of delay
and latches. According to him, the LOI is granted in favour of a
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society formed by the Slum Dwellers. Said society is not made
party before this Court and so no relief can be granted to the
defendant No.2 as it would affect rights of the society which is
not represented before the Court. He submitted that in effect the
plaintiff is seeking injunction to stop the ongoing construction.
According to him, such construction is being carried out in view
of a Slum Rehabilitation Scheme duly approved and granted by
the SRA. He submits that, such construction needs to be
completed within time frame. The Scheme cannot be stopped as
it is being legally carried out. He pointed out various documents
filed by plaintiff No. 5 with affidavit in reply and submitted that
time and again the defendant No. 2 has raised objections to the
NOCs or permissions granted by various Authorities to implement
the Scheme. However, the authorities have over turned his
objections and granted permissions, NOCs and orders in favour of
the plaintiff No. 5 as well as the Slum Dwellers society. However,
defendant No. 2 has conveniently suppressed all these aspects
and under the garb of seeking relief in accordance with the relief
in Notice of Motion No. 1152/2018 is trying to halt the progress
of the Scheme.
8. Advocate for plaintiff No.5 also submitted that, defendant
No. 2 has not pressed for any relief in Writ Petition Lodging No.
785/2020. In a suit filed by him, challenging the conveyance, he
did not claim interim relief or adinterim relief for almost three
years and later pressed for such relief. However, the Hon'ble
Bombay High Court did not grant any relief to him. His appeal
against refusal to grant such relief is also dismissed by the
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Division Bench of the Hon'ble Bombay High Court. Considering
the failure of defendant No. 2 to get relief from the Authorities
under the Act of 1971 as well as from the Hon'ble Bombay High
Court, present application is meritless.
9. Before considering other contentions raised, the basic
contention needs to be looked into about maintainability of
present application on the ground of refusal of adinterim relief
by an order dated 06.10.2018.
10. Present application is moved in Notice of Motion No.
1152/2018. Prayer Clauses (e), (f) and (g) in said notice of
motion are same to the prayer clauses (b), (c) and (d) in present
application Exh.8. Notice of Motion No. 1152/2018 is filed by
the defendants in Suit No. 7602/1989 to set aside the Consent
Terms dated 09.10.2001 and the Conveyance Deed dated
07.12.2001 on the ground that, the defendants were never served
in the suit, they never appeared in the suit, they have never
signed the consent terms and the plaintiffs have played fraud
upon the Court. Said notice of motion is presented in March,
2018. The roznama of said notice of motion reveals that on
06.10.2018 my Predecessor has observed that, he had already
refused adinterim relief to the applicant by an order dated
24.01.2018. Relying on same observations plaintiff No. 5
contends that, adinterim relief in Notice of Motion No.
1152/2018 were rejected. Perusal of roznama dated 24.01.2018
reveals that, on that day one draft notice of Motion was presented
to the Court by an applicant Society. My Predecessor has
observed that, the notice of motion at the instance of said
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applicant society is not tenable, as the society was not party to
the suit and it has remedy to file an independent suit. Liberty
was granted to said applicant society to address on the issue of
maintainability and so the adinterim relief was not granted.
What appears is that, said order dated 24012018 has no
connection with the notice of motion No. 1152/2018 which is
admittedly presented to the Court on 15.03.2018. The Roznama
dated 06.10.2018 nowhere reveals that, the defendants had
pressed for adinterim relief. Thus, the contentions of plaintiff No.
5 that adinterim reliefs were refused in Notice of Motion No.
1152/2018 are not supported by the record. Consequently, there
is no bar in considering the relief sought in present application.
11. Fact remains that during the pendency of Notice of Motion
No. 1152/2018 no adinterim relief or interim relief was pressed
for by the defendants.
12. Perusal of application under consideration reveals that, the
relief is sought in the light of the activities that have started on
the suit property. The photographs attached with the application
clearly reveals the intention of defendant No.2 that, he is seeking
the relief which would ultimately stop the ongoing construction
activities on the suit property. Considering the pleadings in the
application under consideration and photographs attached to it,
thus, it is evident that, the relief are pressed into service to halt
the construction activities and with no other intention.
13. The roznama dated 27.04.2021 specifically mentions that,
the advocate for defendant No. 2 pressed for relief of injunction
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in the light of construction now being carried out by plaintiff No.
5. On that day the application under consideration was not
moved, but the relief in main Motion No. 1152/2018 were sought
to be pressed. The advocate for plaintiff No. 5 had opposed grant
of such relief while referring to various orders passed by the
Hon'ble Bombay High Court, AGRC and CEO of SRA. Thereafter,
the advocate for defendants undertook to file an affidavit to make
out case of change in circumstances which would entitle
defendant No. 2 to press for relief of injunction. On 06.05.2020
present application is filed which is being considered.
14. Thus, the proceedings do indicate that, before filing of
present application itself plaintiff No. 5 had opposed grant of any
relief in terms of relief sought in main notice of motion by
referring to the orders of the Hon'ble Bombay High Court, the
AGRC and the CEO of SRA making aware defendant No. 2 of the
proceedings which had allowed the construction activities.
Despite this knowledge or despite being aware of the orders of
the Hon'ble Bombay High Court in various proceedings, the
orders of AGRC and the proceedings before the CEO of SRA the
defendant No. 2 has moved present application without making
any reference to such proceedings. The application under
consideration merely states that, the plaintiffs have sought to
develop the entire land through one M/s. Gyan S.P. Developer
LLP. No reference at all is made in the application to the
proceedings before the Authorities under the Act of 1971, the
objections raised by defendant No. 2 before such authorities and
the relief sought by defendant No. 2 against the orders of such
authorities before the Hon'ble Bombay High Court. This reveals
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that, the application is filed by concealing various material facts
which would definitely have an impact on the merits of present
application.
15. Present application further reveals that, the relief is sought
only because the construction activities have commenced by not
disclosing the basis on which the construction activities have
commenced, though defendant No. 2 had knowledge of the basis
on which the construction has commenced.
16. Advocate for defendant No.2 submitted that, he has not
sought an injunction to stop the construction, but the relief is
sought to stop the plaintiffs from deriving any benefit from the
consent terms or from taking any steps in furtherance to any
rights purportedly created under the fraudulent consent terms.
17. The relief clause (c) in present application has an effect of
stopping the plaintiffs from doing any activity on the suit
property in the light of rights received by them through the
consent terms thus, in effect it seeks an injunction even to stop
the ongoing construction activities. Merely because the
defendant No. 2 has not explicitly mentioned so in the relief, the
clever drafting will not change the effect of the relief sought by
him.
18. The documents filed by the plaintiff No.5 reveal that,
defendant No. 2 has filed the Suit No. 526/2019 before the
Hon’ble Bombay High Court. He has moved an interim
application lodging No. 3991/2020. In said application he has
sought an injunction to restrain the defendants and the
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respondents i.e. M/s. Gyan S.P. Developer LLP from relying upon
the conveyance as well as from entering and carrying out any
work on the suit property. Said interim application was heard for
grant for adinterim reliefs by the Hon’ble Bombay High Court.
By an order dated 05.10.2020 the Hon’ble Bombay High Court
did not grant adinterim relief. An Appeal No. 4645/2020 was
also filed by present defendant No. 2. However, said appeal also
came to be dismissed by the Hon’ble Division Bench, by an order
dated 22.10.2020. Perusal of the Appeal Memo in Appeal No.
4645/2020 reveals that, it was contended before the Hon’ble
Bombay High Court that the consent terms were also fraudulent.
Thus, the falsity of the consent terms was one of the grounds to
seek the relief from the Hon’ble Bombay High Court which
defendant No. 2 could not get.
19. Thus, it is evident that, present applicant/defendant No. 2
could not secure a relief of adinterim injunction from the Hon’ble
Bombay High Court to stop the construction activities undertaken
by the plaintiffs and M/s. Gyan S.P. Developer LLP in pursuance
of the Scheme. Thereafter, he has come before this Court seeking
the relief which have same effect, but by suppressing all the
earlier proceedings.
20. Needless to mention that, the relief of injunction is an
equitable and discretionary relief. A person seeking such
equitable relief has to follow the principles of equity. One of the
principles of equity is that, the person seeking equity must come
with clean hands before the Court. However, in present case,
defendant No. 2 has come before the Court without disclosing the
proceedings before the Authorities under the Act of 1971 as well
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as the proceedings in the suit filed by him before the Hon’ble
Bombay High Court. He has not disclosed that, he was
unsuccessful in challenging the implementation of the Scheme or
he was unsuccessful in challenging the permissions, NOCs etc. to
proceed with such scheme. He has also not disclosed that, he
could not secure any relief from the Hon’ble Bombay High Court
against the LOI granted for implementing such scheme. Thus, the
conduct of defendant No. 2 clearly indicates that, he tried to
suppress the material facts from this Court. In other word, he has
tried to play a fraud upon the Court. He has tried to seek the
relief from this Court indirectly which he could not get directly in
the other proceedings referred above. The conduct of defendant
is thus not at all equitable. On this ground alone he is not
entitled to relief sought.
21. It also needs to be mentioned that, in view of the
proceedings before the Authorities under the Act of 1971 a Slum
Dwellers Society has acquired the rights in the scheme. If relief
as sought by the defendant No. 2 are granted in absence of such
society its rights will be jeopardized. Thus, grant of relief as
sought will definitely affect the rights of third party. This will not
be equitable. On this ground also the relief as sought cannot be
granted.
22. It is contended that, the plaintiffs are carrying construction
on the land which is not part and parcel of the consent terms as
well as the conveyance. Said ground cannot be accepted as said
lands were never subject matter of any proceedings before this
Court as claimed by defendant No. 2. Thus, defendant No. 2 has
an independent remedy. Therefore, said contention cannot be
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accepted to allow the present application.
23. Advocate for defendant No. 2 submitted that, the identity
of lands not covered by the consent terms and the conveyance is
not determinable. Therefore, the construction on entire land has
to be stopped to preserve the rights of defendant No. 2 in said
lands.
24. These submissions go against the defendant No. 2. Any
person seeking relief in respect of immovable property should
come before the Court with correct description of such
immovable property. If he is not sure about the identity of
immovable property pertaining to which an injunction is sought,
the Court cannot grant him any relief, as it would be granting
blanket injunction as such. Thus, on this count also the
application cannot be allowed.
25. In the light of above discussion, therefore, I hold that, the
application is devoid of merits and needs to be rejected. Hence,
following order:
ORDER
Application (Exh.8) is rejected with costs.
(AJIT N. MARE)
Judge,
Date : 12.05.2021 City Civil Court, Gr. Mumbai.
Dictated On : 12.05.2021
Transcribed on : 12.05.2021
HHJ Signed on : 17.05.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
17.05.2021 12.59 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No.3)
Date of pronouncement of Order 12.05.2021
Order signed by P. O. on 17.05.2021
Order uploaded on 17.05.2021
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