Final Order 1

Order Details: Copy of Judgment
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MHCC010130532019 Presented on : 12/12/2019
Registered on : 16/12/2019
Decided on : 30/03/2023
Duration : 03 Y 03 M 18 D
IN THE COURT OF CITY CIVIL & SESSIONS COURT
FOR GR. BOMBAY, AT BOMBAY
MISCELLANEOUS APPEAL NO.169 OF 2019
I N
ENQUIRY NO.RN/02/Est OF 2019
Shubhangi Gajanan Samel )
R/o. Flat No.003, Bhagyashree Apartment, )
C.T.S. No.2864, Ghartan Pada, Dahisar (E), )
Mumbai 400 068. )..Appellant
V/s.
1. Municipal Corporation of Greater Mumbai )
Having Office at Mahapalika Bhavan, )
Mahapalika Marg, C.S.T., Mumbai 400 001 )
2. Administrative Officer (Estate) )
Office at Asst. Municipal Commissioner, )
Near S.V.P. Talav, M.G. Cross Road No.2, )
Kandivali (w), Mumbai 400 067 )
3. Enquiry Officer )
Office at K/West Municipal Officer Bldg. )
4th floor, Andheri (w), Mumbai 400 005 )..Respondents
Appearance :
Ld. Adv. Abhishek Tripathi for appellant.
Ld. Adv. Som Sinha, Gajanan Giri & Pratik Shetty for respondents.
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CORAM : H.H.THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM
(C.R.No.19)
DATED : 30TH MARCH, 2023
J U D G M E N T
1. It is the case of the appellant that the appellant is possessed and
legally entitled to the suit flat namely flat No.3, Ground Floor,
Bhagyashree Apartment, situated in CTS No.2864, Ghartan
Pada, Dahisar (E), Mumbai. The appellant has purchased the
said flat in pursuance of registered Agreement of Sale dated 4th
of August, 2003, through the builder and the appellant on the
termscondition and consideration stated in the said agreement.
In the year 2006 – 2007, the flat owners formed the cooperative
housing society and the appellant has become member of the
said society and Share Certificates are issued in her name and
also maintenance bills are issued in her name. She has also a gas
connection, electricity connection, bank accounts, tax
assessment in her name since last sixteen years and she is
bonafide purchaser for valuable consideration. Notice on 3rd of
January, 2019, was issued contending that the flat is not allotted
in the name of appellant and that the appellant should vacate
the said flat or action under section 105 (B) of the Mumbai
Municipal Corporation Act, will be taken against the appellant.
Appellant preferred suit and during the pendency of the Suit
Notice dated 28/01/2019, was issued to showcause to the
appellant and it was replied on 18th of February, 2019. The Ld.
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Competent Authority referred and respondent No.2 lead the
evidence and filed their documents and the appellant also filed
evidence in that regard. After hearing both the sides, the Ld.
Competent Authority passed the impugned order on
30/11/2019, directing vacating of the premises, hence, the
present appeal.
2. It is contended that the evidence was recorded without framing
any issue and also the necessary compliances under the Mumbai
Municipal Corporations Act, 1888, were not followed. The order
is passed mechanically. The documents establish ownership right
of the appellants. No documents are filed on record to show that
the appeal premises are owned by the respondents. The
appellant's ownership has not been considered. The occupation
of the appellant since 2014 is not considered. The building is a
private property. The ownership of a private property can only
be acquired under the provisions of the Transfer of Property Act,
1882. By virtue of the registered agreement, the appellant has
become owner of the said property. The Ld. Competent
Authority failed to consider the fact that possession of the
premises was never handed over to the Corporation. The Ld.
Competent Authority failed to appreciate that no one inspected
the property since 2018 and that itself is sufficient to hold that
the property was not of the Corporation. The Ld. Enquiry Officer
took on record the copy of possession receipt dated 20/06/2000
and the said document is forged and fabricated. The Ld. Enquiry
Officer failed to appreciate that the writing and scribbling on the
plans is not proved and it is only with an intention to grab
property from the appellant. The said flat has not been allotted
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as project affected flat and is not reserved for the said purpose.
The plans produced by the appellant and respondents were
different. The Ld. Enquiry Officer did not give a proper
reasoning for the same. The documents do not bear the
signature of the builder developer. Hence, prayed for setting
aside the impugned order.
3. The Corporation had opposed the claim of the appellant
contending therein that in fact, the proprietor of the builder
company, is the husband of the present appellant. The said
builder had undertaken to develop the property and furnished
plans. In pursuance of the DC rules and regulations laid down,
two flats were reserved for allocation of Project Affected
Persons. Possession of the same was also handed over to the
Corporation. The premises were kept in custody of the builder
till the allotment to Project Affected Persons (PAP).
Subsequently, during the inspection, the third party was noticed
in the said premises and hence, the present proceedings have
been initiated. Fraudulently documents have been entered. The
developer builder had no right, title or interest in the said flat
and was also not occupying the same as owner thereof and
could not have assigned any rights to the appellant. There was
no notice to the Corporation of the said fact. Considering this
aspect no right accrues in favour of the appellants and hence,
the Ld. Competent Authority has considered all the facts and
circumstances and rightly held that the premises are of the
Corporation and the appellant is unauthorized occupant. Hence,
the appeal be dismissed.
4. Heard both sides, who reiterated the contentions as above.
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5. Perused the impugned order, appeal memo, record and
proceedings and the documents filed on record and considered
the submissions advanced, following points arise for my
consideration and answer the same as under for the reasons
stated herein under :
POINTS FINDINGS
1. Whether the Corporation can be said to
be the owner of the premises ? :
In the affirmative.
2. Whether the appellant has got any right
title and interest in the property by virtue
of agreement dated 4th of August, 2003 ?
:
In the negative.
3. Whether the appellant is unauthorized
occupant ? :
In the affirmative.
4. Whether the impugned order requires an
interference ? : No.
5. What order ? : As per final order
AS TO POINT NO. 1 :
6. During the course of hearing, it is not disputed that the
proprietor of the builder developer is the husband of present
appellant. The Corporation has come up with a clear case that in
pursuance to the DC control rules and as the premises falls
under the public housing/highdensity housing, permission was
granted for development of the property subject to the
conditions and accordingly, an agreement was entered into with
Developer on 31st of October, 1997. It was specifically agreed
that 10% of the total builtup area, which shall consist of two
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tenements shall be given free of cost to the Municipal
Corporation for allotment to the Project Affected Persons. It was
on this condition that the permission was given to the builder
developer. An undertaking is also given by the builder in that
format. In fact, by an undertaking dated 16/06/2000, it is noted
that possession of the two flats are handed over and that they
shall take due care of the tenements till the allotment to the
Project Affected Persons. The commencement certificate is also
hence in parts. A separate possession receipt in that regard is
also given on 20th of June, 2000. It is signed by the architect, the
proprietor and also by the municipal authorities. Thus, not only
these documents show that there was an agreement to that
effect but, also it was acted upon by handing over of possession.
Even the IOD 04/02/1997, specifically states of 10% of the flat
to be given, as per letter dated 17th of December, 1996. The
building commencement is seen to be effected on 12th of March,
1997.
7. Table 4 of the DC rules contemplates that the owner shall be
liable to hand over 10% of the permissible builtup area to the
Corporation free of charge for allotment to the Project Affected
Persons. Thus, all these documents clearly show that right from
1996 onwards, there is a reference made to the 10% flats. Much
was harped upon the fact that there is no registered agreement.
In fact, the ownership acquisition is a statutory creation and
thus, I do not feel that a separate registered document is
required. There was no flat in existence when the said condition
was imposed and thus, there is no actual transfer as such. It was
a condition precedent for constructing the said premises that
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10% would be of the Corporation consisting of two tenements.
8. Now, the said issue that arises is with regard to the aspect of
which two flats may constitute 10% as in the DC rules. The
appellant relies upon the plan annexed to her agreement and
contends that it is the said plan, which shows it to be her
property or private property of the builder and there is nothing
on record to indicate otherwise. In fact, the IOD annexed to the
plan also mentions 10% flats. The plans with the agreement are
not the sanctioned plans but, is only a drawing prepared by the
architect. It does not bear the date of its preparation. There is
nothing on record to show that the plan is annexed to the
agreement of the appellant is part of the sanctioned plan and it
also does not mention so.
9. The falsity of the case of the appellant is seen from the fact that
the occupation certificate is issued in the year 2002 and the
agreement which is of 2003, contemplates construction of a
future flat and not of existing flat as is seen in the list of
amenities to be provided. There is no possession handed over by
virtue of the said agreement. It is thus apparent that the
agreement or format of agreement entered into was of much
prior to and of the older format and not after the flat was
constructed. This supports the contention of the flat being
occupied unauthorizedly.
10. Much was tried to be made out of the handwritten notes in the
sanction plan. Firstly, it is a public document and nothing
prevented the appellant from getting a copy of the said sanction
plan and pointing out that it is not as per the sanction plan. In
view of all above facts, onus thus shifts on the appellants.
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Secondly, nothing prevented her from examining the builder,
who is her own husband to establish that this handwriting or
alterations or undertaking is a forged and fabricated one. The
appellant has relied upon the plan annexed to her agreement,
which does not bear any seal or any endorsement to the effect
that it is a sanctioned plan. The agreement does not state that
the plan annexed to the agreement is the sanctioned plan. The
electricity bill filed on record or dated 11th of August, 2009,
shows that the connection was in the name of the builder
developer. The Share Certificate does not bear any date of its
issuance. In ground (n) of Appeal memo occupancy is claimed
from the year 2014 and only such resultant documents of 2014
are being filed on record. Thus, the documents on record except
the alleged registered document, all are of 2014 and thereabout.
Thus, if one considers this fact and these circumstances of the
case, it is apparent that all the documents are prepared in
anticipation and to grab the property of the Corporation. On
consideration of the above documents on record, it is apparent
that the suit flat was of the Corporation and earmarked for
allotment to the Project Affected Persons.
11. Appellant relied upon the judgement of “Suraj Lamp and
Industries Private Limited V/s State of Haryana & another,
Reported in (2012) 1 SCC 656”, wherein the Hon'ble Supreme
Court of India has held that “The transfers cannot be effected
through a powerofattorney in lieu of the sale deed or proper
documents of transfer”. That has no applicability in the present
case. Considering the same, the Corporation has clearly
established its right over the said property and statutory
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ownership over the said two flats. Hence, I answer point No.1 in
affirmative.
AS TO POINT NO. 2 :
12. Merely by executing a register document or payment of
consideration, title does not flow. Not only does one has to show
execution of proper documents which is a second part of
compliance of transfer, but one has to also establish and show
that there was property right existing in the transferor to
transfer. If, a person does not have any right in the property, no
amount or quality of registered documents or any execution of
documents can create any right in favour of the transferee. In
such circumstances, as I have pointed out, the transferor had no
rights in the said property and he could not have assigned or
given any rights to the appellant. There is no requirement of
setting aside such sale deeds or documents at the instance of the
original owner. Asking for such setting aside, would
unnecessarily cast an unwanted litigation on owner. If, at all the
appellant is aggrieved then, there is nothing to prevent her from
establishing her right in the said property. It is thus very clear
that the appellant in collusion with her husband or the husband
by his own acts to prevent the property to be given to the Project
Affected Persons or the Corporation has created these
documents and now the appellant is taking advantage of the
same. No right, title or interest in the said flat has accrued to the
appellant. Considering the same, the appellant has no right in
the said property and hence, I answer point No.2 in negative.
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AS TO POINT NO.3 :
13.The Corporation has established that they are owners of the said
property and are entitled to occupy the said property by virtue
of the statutory provisions existing in the DC rules and also the
agreements and handing over possession is seen to be
established. It is also part of record that all the documents are
made up by the appellants. The appellant has failed to establish
that she has any right title in the said property. Considering the
same, the Corporation has established that the appellant is
unauthorized occupant in their property. Hence, I answer point
No.3 in affirmative.
AS TO POINT NO 4 :
14. On perusal of the entire record, due hearing and notices and
compliances has been effected by the Ld. Competent Authority
and Corporation. It is after hearing and consideration of all the
documents on record the Ld. Competent Authority has
considered the right of the appellant in the property and right of
the Corporation in the said property. The findings of the Ld.
Competent Authority are seen to be in consonance with the
documents on record and cannot be said to be perverse or
erroneous. Considering the same, no ground is made to
interfere in the said impugned order and hence, upon the
following order :
15.
O R D E R
1. Miscellaneous Appeal No.169 of 2019, is dismissed.
2. Time is granted to the appellant to vacate the premises till
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31/05/2023, subject to appellant filing an undertaking before
this Court within 4 weeks from today that the appellant is in
physical occupation of the premises and that appellant will not
any third party interest in the said property and further appellant
will honour the order of the Ld. Enquiry Officer on its attaining
finality.
3. If, the above undertaking is not filed within the stipulated period,
the execution can be proceeded with.
4. Record and proceedings be returned to the Respondent.
16.
17.
(Dictated and pronounced in open Court).
30/03/2023 (A.SUBRAMANIAM)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711)
Draft dictated on Dragan software : 30/03/2023
Corrected and finalized on : 11th & 17th April, 2023
Signed by HHJ on :
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“Certified to be true and correct copy of the original signed order”.
18/04/2023
at about 5.45 p.m.
(Ms. Vidya Abhijit Mande)
Stenographer (GradeI.)
City Civil Court &
Addl. Sessions Judge,
Gr. Mumbai
Name of the Hon'ble Judge : A.SUBRAMANIAM,
PRINCIPAL JUDGE,
City Civil Court &
Addl. Sessions Judge
Court Room No.19, Gr. Mumbai
Date of pronouncement of Order : 30/03/2023
Order signed by Hon'ble Judge on : 18/04/2023
Order uploaded on : 18/04/2023
at about 5.45 p.m.
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