Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No. 3052/2019 in L.C.Suit No. 2248/2019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3052 OF 2019
(CNR NO. MH CC010083192019)
IN
L.C. SUIT NO. 2248 OF 2019
(CNR NO. MH CC010081622019)
Sayyed Chand Ansar ].. Plaintiff.
V/s.
State of Maharashtra and others ]..Defendants
Advocate Mr. M.V. Holamagi for the plaintiffs.
Advocate Mr. Shukla for defendant nos.1 and 2.
Advocate Ms. Suma for defendant no.3.
Advocate Mr. Prashant Nakati for defendant no.4.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 20th AUGUST 2019
ORAL ORDER
This Notice of Motion has been taken out by the plaintiffs
for restraining the defendants temporarily from obstructing the
occupation, use and enjoyment of the plaintiffs over the suit premises
and restraining the defendants temporarily from pulling down, using
force and dispossessing the plaintiffs from the suit premises and
temporarily restraining the defendants from denying the legitimate
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rights of the plaintiff in their respective suit premises bearing C.T.S.
No.151, 151/1 to 61, 152/1 to 43, 153 Part and 154 part.
2 In support of notice of motion, plaintiff no.1 has filed his
affidavit. He has placed his reliance in the pleadings in the plaint. It is
averred that irreparable loss, inconvenience and hardship would be
caused to the plaintiffs, if reliefs are rejected and if reliefs are granted,
no prejudice would be caused to the defendants. The balance of
convenience is lying in favour of the plaintiffs. Hence, prayed for
allowing notice of motion.
3 Defendant nos.1 and 2 have failed to file their reply. Hence
no reply order has been passed against defendant nos.1 and 2.
4 Defendant no.3 has filed reply and contended that this
Court has no jurisdiction to try and entertain the present suit. The
plaintiffs have not approached to ARGF and filed this suit with malafide
intention. It is case of defendant no.3 that SRA scheme was sanctioned
only in respect of CTS bearing No.151, 151/1 to 61 (New C.T.S.
No.151B), 152, 152/1 to 43 and 153 situated at Pankeshahbaba
Dargah, L.B.S. Marg of Village, Ghatkopar (West), Mumbai400 086.
The plaintiffs with malafide intention have mentioned CTS No.154 Part
in the plaint to mislead the Court. The SRA has sanctioned the scheme
after verifying all the documents, which are stand in the name of
defendant no.4. As on today, the property card in respect of the CTS
bearing No.151, 151/1 to 61 (New C.T.S. No.151B), 152, 152/1 to 43
and 153 are in the name of defendant no.4. Defendant no.3 has
tendered revised Letter of Intent.
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5 It is further contended that in respect of the ownership of
the suit land, the owner of land is M/s. Poddar Mills. M/s. Poddar Mills
has given development rights to M/s. Parul Enterprises in the year
1980. M/s. Parul enterprises was partnership firm got dissolved due of
the death of one of the partners and was reconstituted as proprietary
frim whose proprietor is C.D. Shah (HUF) as its Karta. Mr. C.D. Shah
(HUF) Karta along with all his dependents (Successors) has executed
the registered Assignment of Development Rights, Irrevocable General
Power of Attorney dated 13.03.2007 and also executed Indemnity Bond
and Declaration cum Undertaking dated 13.03.2007 with defendant
no.4. Defendant no.4 has submitted a proposal for development under
SRA Scheme, which was duly sanctioned by defendant no.3. The
alleged contention of the plaintiffs that the defendants are in collusion
with each other and have created about 13140 bogus structures, which
are not at all in existence. However, the plaintiffs have not challenged
the said alleged bogus structures before any Court of law. The SRA
scheme have been sanctioned after taking consent of more than 70%
slum dwellers. Only these six plaintiffs have approached the Court to
make hurdle in the development of the SRA Scheme. Hence, prayed for
dismissal of notice of motion with costs.
6 Defendant no.4 has filed affidavit in reply by filing
affidavit of Authorized Representative. It is contended that the plaintiffs
in the present suit averred that vide an Agreement dated 31.10.1979
and another Agreement dated 15.01.1980. The owners have permitted
to Mr. Parul Enterprises a Partnership Concerned to develop the said
plot and on very substantial portion of the said landed property of
building known as Building No.8 having A and B of consisting 80
residential Flat was constructed by M/s. Parul Enterprises under
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requisite permission from Municipal Corporation of Gr. Mumbai and the
flat were sold to the individual. After compliance of the terms and
conditions and payment of consideration, the purchasers were put into
vacant and peaceful possession of the respective flats. The plaintiffs do
not have right, title and interest in CTS bearing No.151, 151/1 to 61
(New C.T.S. No.151B), 151C (Part) and it are owned by the defendants.
The said property along with adjoining property are occupied by slum
dwellers and Deputy Collector (Enc/Rem) and C.A., Kurla by an order
dated 14.11.1977 has declared CTS Nos. 151, 151/1 to 61 along with
adjoining property as Slum and the same has been published in
Government Gazette on 16.02.1978. The slum dwellers residing on the
said property formed Pankeshababa SRA CHS and appointed defendant
no.1 being ownerscumdevelopers. There were near about 557
occupants and more than 70% occupants have given their written
irrevocable consents to defendant no.1.
7 It is further contended that the Competent Authority after
visiting suit property and verifying documents of each occupants have
issued AnnexureII on 17.09.2008, certifying that there are total 557
structures out of which 345 are eligible. The Slum Rehabilitation
Authority (hereinafter referred to as SRA) on the basis of AnnexureII,
approved the Slum Scheme and issued Letter of Intent on 01.12.2008 in
the name of said society and defendant no.1. Thereafter, SRA approved
building plan of Rehab Building nos.1 and 2 on 22.06.2009. On the
basis of aforesaid permissions/sanctions granted by SRA, the defendant
has constructed Rehab Building no.1, “A” Wing, consisting of 155 rehab
tenements and part of Rehab Building No.1, “B” Wing, consisting of 175
rehab tenements and SRA has issued Occupation Certificate for Rehab
Building No.1, “A” Wing.
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8 Since defendant no.4 is also owner of adjoining property
being CTS No.151C, which is partly Slum and partly “nonslum” and
there is adjoining Slum on CTS No.152, !51/143 of Village Ghtkopar,
which is owned by the Government of Maharashtra and same is
occupied by slum dwellers, who have appointed the defendant as
developers, the Competent Authority has issued Supplementary
AnnexureII on 02.03.2013 and certified the list of total 71 occupants.
Therefore, the defendant submitted Revised proposal to SRA for
clubbing adjoining slum and nonslum areas in defendant's sanctioned
Slum Scheme and SRA has approved the same and issued Revised LOI
dated 23.06.2017.
9 It is further contended that application of the defendant
for Occupation Certificate for Building No.1, B Wing is pending for
consideration before SRA. SRA has allotted 300 rehab tenements to
300 eligible slum dwellers and they are residing in their respective
rehab tenements. The defendant is constructing A wing of Rehab
Building no.2. The plaintiffs have filed present suit for restraining the
defendants from carrying out redevelopment on property. The suit
property has been declared as Slum under section 4 of Slum Act and
SRA has sanctioned slum scheme and issued Letter of Intents, approved
Building Plan of Rehab buildings and issued IOAs and CCs and
defendant no.1 has constructed Rehab Building nos.1 and 2. The
plaintiffs were aware about the same and filed present suit. In view of
specific bar under section 42 of Slum Act, this Court has no jurisdiction
to try and entertain the present suit.
10 It is further contended that the plaintiffs have failed to
describe the suit property. The defendant is also owner of CTS
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No.151C. CTS Nos.152, 152/143 were occupied by slum dwellers,
who made application to the Government of Maharashtra for
acquisition of property under section 14(1) of Slum Act and the
Government of Maharashtra by Notification has acquired said property
under section 14(1) of Slum Act. The Competent Authority has passed
an Award on 27.09.2012 under section 17 of Slum Act to that effect. By
an Agreement dated 11.10.1989, the plaintiffs have purchased near
about 47 flats from M/s. Parul Enterprises. Thus, the plaintiffs are not
owners of the suit land upon which their building is constructed. The
plaintiffs does not have any right, title and interest in the suit property.
The plaintiffs have approached to the competent authority to declare
their eligibility and accordingly competent authority has issued
Supplementary AnnexureII. Defendant no.4 has already followed due
process of law under section 33 of the Maharashtra Slum Area
(Improvement, Clearance and Redevelopment) Act, 1971 against all the
plaintiffs. The Deputy Collector (E & C) has been passed an order dated
05.02.2019 and the Additional Collector has been dismissed the appeal
filed by the plaintiffs against the order dated 05.02.2019. Pursuant to
the order passed by the Additional Collector dated 24.06.2019, the
Deputy Collector (E & C) has issued valid notice dated 01.08.2019 for
the demolition of structures of the plaintiffs.
11 It is further contended that for undertaking the work of
development under the LOI issued by SRA, the defendants are required
to demolish the existing tenements/structures including the tenements/
structures occupied by the plaintiffs. If any order is passed as prayed
for, the same would adversely affect the same being implemented by
defendant no.4, for the benefit of about 628 slum dwellers, who are
presently living in extremely unhygienic conditions. Since the LOI has
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been issued considering the requisite number of slum dwellers support
to the scheme, the question of consent of the plaintiffs does not arise, in
the event they fall in the category of nonconsenting slum dwellers.
12 It is further contended that defendant no.4 is the owner of
the plot of land, where the scheme is being implemented and for which
the LOI has been issued. Defendants have issued various legal notices
to the plaintiffs, but there is no reply. It is further contended that the
plaintiffs are admittedly occupants of the property being CTS No.151,
151/1 to 61, 152, 152/1 to 43, 153 (Part), 154 (Part), which is owned
by defendant no.4 developer. Thus, the plaintiffs are really rank
trespassers on the land, owned by the Government. Further, it is
contended that considering the allegations made by the plaintiffs/slum
dwellers, they have alternate efficacious remedy to approach High
Power Committee, constituted by the Government of Maharashtra,
pursuant to the Judgment and order passed by Full Bench of the
Hon'ble High Court in the case of Tulsiwadi Navnirman CHS Ltd., V/s.
State of Maharashtra and others, which is reported in 2007(5)Mh.L.J.
page 851. This Court has no jurisdiction to try and entertain the suit.
The Additional Collector has give fare hearing to the plaintiffs and
passed impugned orders. There is no primafacie case made out by the
plaintiff. The balance of convenience lies in favour of the defendants
and irreparable loss would be caused to the defendants, if this notice of
motion is allowed. Hence, prayed for dismissal of the suit.
13 Heard the learned advocate for the plaintiffs and the
learned advocates for the defendants.
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14 The following points arise for my determination. I have
recorded points and findings thereon alongwith the reasons are as
follows:
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff has established
prima facie case ?
In the
Negative.
2 Whether balance of convenient lies in
favour of the plaintiff ?
In the
Negative
3 To whom irreparable loss would be
caused, if this notice of motion is
allowed ?
To the
Defendant
4 What Order ? As per final Order
R E A S O N S
15 The plaintiffs have come before the Court with the case
that the fraud is acted upon them by the defendants while the
government authorities preparing AnnexureII by the Government
Authorities and with the case that the plaintiffs and their predecessors
had acquired the premises in the property bearing CTS No.151(A)
151(B) 151(C), 151/1 to 61 parts, 152, 152/1/43 parts, 153 parts and
154 parts. Primafacie, it appears that the plaintiffs have not given
specific description of their respective rooms in the suit plaint.
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17 According to the plaintiffs, the Government Authorities are
in collusion with the developer and all the defendants have been using
muscle power to destroy the legal rights of the occupants and in the
process of alleged redevelopment various premises are demolished.
Further, according to the plaintiffs, the defendants have created about
130140 bogus structures, which are not at all in existence and thereby
certain persons are given 23 rooms, in lieu of the original premises. No
proper procedures were followed by the defendants.
18 Further, it is the case of the plaintiffs that the defendants
have given threat to destroy the suit premises without executing any
agreement without giving transit camp benefits without providing the
corpus fund and thereby the legitimate rights of the plaintiffs are being
denied by the defendants and they are trying to destroy the shelters of
the plaintiffs.
19 I would like to mention here that nowhere in the pleadings,
the plaintiffs have pleaded specifically how cause of action accrued to
the plaintiffs on 01.08.2019, but tendered the copy of notice dated
01.08.2019 along with the plaint without pleadings. The plaintiffs have
filed this suit for restraining the defendants from demolishing the
structure in the process of redevelopment of CTS Nos. 151, 151/1 to 61,
152, 152/1 to 43, 153part and 154part at Pankhe Sha Baba Darga,
L.B.S. Marg, Ghatkopar (West), Mumbai400 086 and for seeking relief
of declaration accordingly. The plaintiffs have filed on record Property
Card Extract, Ration Cards, Aadhar Cards, voter identity cards, Shops
and Establishment Certificates, Electricity bills, Municipal Assessment
Tax Bills, Trade Licence and Licence issued by the Government of
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Maharashtra under the Food Adulteration Act. The plaintiffs have filed
on record notice issued by the Deputy Collector, Competent Authority
under sections 33 and 38 of the SRA Act.
20 It appears primafacie that in view of notice issued by the
Competent Authority under sections 33 and 38 of the SRA Act, the
plaintiffs have filed present suit. No doubt, directly the plaintiffs have
not asked reliefs in respect of the said notices, but indirectly in view of
the said notice issued, the plaintiffs have come before this Court.
21 In this background, defendant no.1 has filed letter dated
14.08.2019 sent by the Deputy Collector to the Government Pleader
disclosing therein that the proposal submitted by defendant no.4 in
respect of non cooperative slum holder submitted proposal under
sections 33 and 38 of the SRA Act on 04.05.2018. Further, it reveals
from said letter that the Deputy Collector has given hearing to the
parties and passed order on 05.02.2019. Further, it is informed that
against the said order, appeal has been preferred under section 35 of
the SRA Act and it is dismissed on 24.06.2019. There is provision under
the Slum Act to prefer further appeal to the Concerned Authority as
mentioned in the Slum Act. In this background, let us verify facts.
22 Defendant no.4 has filed documents along with reply to
this notice of motion. It is urged by the learned advocate for defendant
no.4 that the plaintiffs do not have right, title and interest in the CTS
Nos. 151, 151/1 to 61, (New CTS No.151B) and 151C (part) as it is
owned by defendant no.4. Further, according to defendant no.4, there
is slum area in the suit property, which is covered for redevelopment
and it is redeveloped by defendant no.4. Adjoining property to above
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CTS numbers are occupying by Slum Dweller on 14.11.1977, the
Deputy Collector (Encroachment/Removal), C.A. Kurla, by an Order
dated 14.11.1977 has declared CTS Nos. 151, 151/1 to 61, along with
adjoining property as 'slum' and it is published in the Government
Gazette on 16.02.1978.
23 Defendant no.4 has filed on record the copy of said Gazette
dated 16.02.1978. Further, according to defendant no.4, the Slum
Dwellers residing in the said property formed Pankeshababa SRA CHS
and appointed defendant no.4 being the ownerscumdevelopers and
there were near about 557 occupants and more than 70% occupants
have given their written irrevocable consents to defendant no.4 and
Competent Authority after visiting suit property and after verifying
documents of each occupants have issued AnnexureII on 17.09.2008,
certifying that there are total 557 structures out of which 345 are
eligible. Defendant no.4 has filed the same on record. Further, it
appears that defendant no.4 has tendered Letter of Intent dated
01.12.2008 issued in the name of said society and defendant no.1, in
respect of proposed S.R. Scheme on the plot bearing C.T.S. No. 151,
151/1 to 61 at Pankeshahbaba Dargah issued by Slum Rehabilitation
Authority on the basis of approved Slum Scheme. Thereafter, it seems
that the SRA, thereafter approved Building Plan of Rehab Building
Nos.1 and 2 on 22.06.2009 and issued Intimation of Approvals for
Rehab Building nos.1 and 2. Defendant no.4 has filed the same on
record along with reply Exhs.D and D1. Defendant no.4 has filed on
record Commencement Certificates issued on 01.07.2009 for Rehab
Building Nos.1 and 2 vide Exhs. E and E1 to the reply to this notice of
motion.
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24 It appears primafacie that in view of permissions and
sanctions granted by SRA, defendant no.4 has constructed Rehab
Building No.1, “A” Wing, consisting of 155 rehab tenements and part of
Rehab Building no.1, “B” Wing, consisting of 175 rehab tenements and
SRA has issued Occupation Certificate for Rehab Building No.1 “A”
Wing.
25 Further, it appears that the defendants are the owner of
adjoining property being CTS No.151C, which is partly Slum and partly
“nonslum” and there is adjoining Slum on CTS No.152, 151/1 to 43 of
Village Ghatkopar, which is owned by the Government of Maharashtra
and the same is occupied by slum dwellers are clubbed together and the
Competent Authority has issued Supplementary AnnexureII on
02.03.2013 and certified the list of total 71 occupants. Thereafter,
defendant no.4 has submitted Revised proposal to SRA for clubbing
adjoining slum and nonslum areas in defendant's sanctioned Slum
Scheme and SRA has approved the same and issued Revised Letter of
Intent dated 23.06.2017. Defendant no.4 has filed it on record.
26 Accordingly, in support, defendant no.3 has also filed
documents in respect of revised Letters of Intent as stated by defendant
no.4. Thus, prima, it appears that CTS numbers mentioned in the
plaint, have been considered in the SRA Scheme. Defendant no.3 in
reply has stated that even how initially SRA scheme was sanctioned
only in respect of CTS bearing No.151, 151/1 to 61 (New C.T.S.
No.151B), 152, 152/1 to 43 and 153 situated at Pankeshahbaba
Dargah, L.B.S. Marg of Village, Ghatkopar (West), Mumbai400 086
and specifically stated that the plaintiffs with malafide intention have
mentioned CTS No.154 Part in the plaint to mislead the Court.
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27 Further, it is urged by the learned advocate for defendant
no.3 that the SRA has sanctioned the scheme after verifying all the
documents, which are stand in the name of defendant no.4 and she has
submitted that as on today, the property card in respect of the CTS
bearing No.151, 151/1 to 61 (New C.T.S. No.151B), 152, 152/1 to 43
and 153 stands in the name of defendant no.4. Thus, in respect of the
ownership of the suit land, the owner of land is M/s. Poddar Mills.
M/s. Poddar Mills has given development rights to M/s. Parul
Enterprises in the year 1980. M/s. Parul enterprises was partnership
firm got dissolved due of the death of one of the partners and was
reconstituted as proprietary firm whose proprietor is C.D. Shah (HUF)
as its Karta. Mr. C.D. Shah (HUF) Karta along with all his dependents
(Successors) has executed the registered Assignment of Development
Rights, Irrevocable General Power of Attorney dated 13.03.2007 and
also executed Indemnity Bond and Declaration cum Undertaking dated
13.03.2007 with defendant no.4. It is further urged by the advocate for
defendant no.3 that Defendant no.4 has submitted a proposal for
development under SRA Scheme. Thus, primafacie, it appears that in
respect of CTS numbers mentioned in the suit plaint, the said property
is part and parcel of approved SRA Scheme and SRA has followed due
process of law while granting the said scheme of defendant no.4.
28 In this background, primafacie, the plaintiffs have not
shown their right, title and interest specifically as CTS Nos. 152, 152/1
43, which were occupied by slum dwellers, who made application to the
Government of Maharashtra for acquisition of property under section
14(1) of Slum Act and the Government of Maharashtra by Notification
has acquired the said property under section 14(1) of Slum Act. The
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Competent Authority has passed an Award on 27.09.2012 under section
17 of Slum Act to that effect. The said award is filed on record by
defendant no.4. Thus, primafacie, defendant no.4 has right, title and
interest in the above CTS number. The plaintiffs have not primafacie
produced any documents showing their rights and how they acquired
the said rights in respect of CTS No.151, 151/1 to 61, 152, 152/1 to 43,
153 part.
29 Further, Defendant no.4 has filed on record order passed
under section 35 of the Slum Act by the Additional Collector dated
24.06.2019. Primafacie, it appears from the documents tendered by
defendant no.4 discloses that the plaintiffs have filed the appeal against
order passed under sections 33 and 38 of the SRA Act on 05.02.2019
and 25.02.2019. The said appeals have been dismissed after hearing
the parties. It is pertinent to note that even plaintiff nos.4 and 5 have
also filed appeal under section 35 of the Slum Act and the same has
been dismissed. Further, even plaintiff no.6 has also filed appeal under
section 35 of the Slum Act and it is dismissed on 24.06.2019. The
plaintiffs have not disclosed the said facts in the present suit. Thus, the
plaintiffs have suppressed material facts from the Court. It appears that
the plaintiffs approached to the Competent Authority to declare their
eligibility and the Competent Authority has issued Supplementary
AnnexureII. Primafacie, it appears further that defendant no.4 has
already followed due process of law under sections 33 and 38 of the
SRA Act. Appeal under section 35 of SRA Act as discussed above, seems
to be dismissed on merits.
30 Thus, primafacie, it appears that in view of orders passed
by the Competent Authority under the Slum Act, the Deputy Collector
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(E & C) has issued the notice dated 01.08.2019. After receiving the said
notice, it discloses that the plaintiffs have filed this suit that too,
suppressing all the said material facts including without pleading about
notice received dated 01.08.2019. In view of above discussion, it prima
facie discloses that notice issued by the Deputy Collector (E & C) dated
01.08.2019 in respect of the structure of the plaintiffs is valid.
31 Thus, primafacie, it appears that notice issued on
01.08.2019 though not challenged directly, but it is issued in view of
action initiated under sections 33 and 38 of Slum Act. Therefore,
primafacie, in view of section 42 of the Slum Act, this Court has no
jurisdiction and further even no injunction would be granted by any
Court or other authority in respect of any action taken or to be taken in
pursuance of any power conferred by or under this Act.
32 The learned advocate for defendant no.3 has placed her
reliance in Amrut P. Shinde V/s. The State of Maharashtra and
others reported in Writ Petition No.1475/2016 decided on
16.02.2016. With respects, the principle held is guideline for the
present case in hands.
33 Further, the learned advocate for defendant no.4 has
placed his reliance in Mrs. Hafiza Gazi Sayyed and others V/s.
Grievance Redressal Committee and others reported in Writ
Petition No.14581 of 2018. I would like to mention that the facts of
the case are similar. Writ Petition was filed in respect of suit premises
CTS No.151, 151/1 to 61 are in of SRA Scheme. The said Writ Petition
has been dismissed and it has been considered that the authorities have
not committed any error in passing the impugned orders while initiating
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the proceedings under sections 33 and 38 of the Slum Act. Therefore,
with respects, it is applicable to the present set of facts.
34 In the background of above facts and above discussion, I
hold that the plaintiffs have failed to establish primafacie case in their
favour. Hence, I answer point no.1 in the negative.
AS TO POINT NOS.2 AND 3:
35 So far as point nos. 2 and 3 are concerned, it reveals that
70% occupants have given consent and therefore, Letter of Intent has
been issued and even revised Letter of Intent has been issued after
verification of the documents of defendant no.4. Therefore, considering
the scheme being under SRA, the balance of convenience is tilted in
favour of the defendants only and not in favour of the plaintiff. If this
notice of motion is allowed, irreparable loss would be caused to the
defendants and to all other hutments, who gave their consent for the
scheme. Hence, I answer point nos.2 and 3 accordingly.
36 In the light of my above discussion and findings as to point
nos. 1 to 3, this notice of motion is to be dismissed. With this, I proceed
to pass the following order:
ORDER
Notice of Motion No.3052 of 2019 is hereby dismissed with
costs.
2 Notice of Motion No.3052 of 2019 stands disposed of accordingly.
(S. P. PONKSHE)
Judge,
Date: 20/08/2019. City Civil Court,
Dictated on : 20/08/2019 Gr. Bombay.
Transcribed on : 29/08/2019
Signed on : 30/08/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30/08/2019 At 5.40 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
20.08.2019
Judgment/Order signed by P.O. on 30.08.2019
Judgment/Order uploaded on 30.08.2019
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