Bombay High Court
M/S. Patel Constuction Company vs Himanshu Dearkadas Ruparelia And Ors on 7 May, 2025
2025:BHC-AS:20922
FA 27-2014.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.27 OF 2014
M/s. Patel Construction Company, ]
Having its Office at 303/3040, ]
Gul Mohar Complex, Goregaon (West), ]
Mumbai - 400 063. ] ...Appellant.
Versus
1) Himanshu Dwarkadas Ruparelia, ]
Adult, Hindu, aged about 45 years ]
Residing at Neel Tarang, Flat No. ]
210, Veer Sawarkar Marg, Mahim, ]
Mumbai-400 016. ]
2) Slum Rehabilitation Authority, ]
A Statutory Body having its Office ]
At 5th Floor, MHADA Building, ]
Kala Nagar, Bandra (East) ]
Mumbai-400 051. ]
3) Parvati Nagar SRA Co-operative ]
Grihanirman Sanstha Limited, ]
C.T.S. No. 2, 2/1 to 4, 3, 4/1 to 15, ]
5, 5/1 to 8, 6, 6/ to 288, 6/296 to 494, ]
7, 7/1 to 24 of Village Malad, ]
Having their address at ]
Mahadevbhai Desai Road, ]
Kandivali (E), Mumbai-400 101. ]
4) The State of Maharashtra. ]
(Through Collector of Mumbai ]
Suburban District), Administrative Building, ]
Near Chetna College, ]
Bandra (East), Mumbai-400 051 ]
5) Harsha Shailendra Reshamwala, ]
Aged 54 years, ]
Residing at Sethia Building, 12, ]
Dr. D.D. Sathe Marg, ]
Opera House, Mumbai-400 004. ]
6) Kashmira Vijay Contractor, ]
Aged 49 years, Residing at 701 ]
Krishna Apartment, Jain Derasar ]
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Mandap, Near Podar School, ]
Santacruz (West), Mumbai-400 054 ]
7) Mr. Dhanesh Dwarkadas Ruparelia ]
Residing at 180, Irchestar Road, ]
Rushen Northamtonshire NN 10900 ]
U.K. ] ...Respondents.
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Mr. Rohan Cama and Mr. Nilesh Gala i/b Bharti Laskar for the Appellant.
Mr. Atul Damle, Senior Advocate along with Mr. R. M. Haridas i/b Mr. Sachin
Dhakephalkar for the Respondent No. 1.
Mr. Jagdish G. Aradwad - Reddy and Ms. Dipti Thorat for Respondent No. 2.
Mr. Amogh Singh, Mr. Santosh Pathak and Mr. Rahul Arora i/b Law Origin for
the Respondent No.3.
Ms. Padma Chinta and Mr. Harshad Sathe i/b Mr. Harshad Bhadbhade for the
Respondent No. 5.
Mr. Rubin Vakil and Ms. Isha Thakur i/b Vimadalal & Co., for Respondent No. 6.
Mr. A. R. Patil, AGP for the Respondent-State.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : March 21, 2025
Pronounced on : May 7, 2025
JUDGMENT:
1. The First Appeal preferred by the original Defendant No.2 impugns the judgment dated 25 th September, 2013 passed by the City Civil Court in L.C.Suit No.1907 of 2008 partly decreeing the suit declaring the sanctions and permissions granted by the Defendant no.1-SRA for development of the suit plot as illegal, bad in law and sa_mandawgad / Patil-SR (ch) 2 of 43 FA 27-2014.doc restraining the Defendant Nos.2-the owner/developer and Defendant No.3-the slum dwellers society from carrying out any development activities pursuant to the slum rehabilitation scheme including the Letter of Intent (LOI) dated 20th July, 2006 on the said plot. For sake of convenience, the parties are referred to by their status before the Trial Court.
PLEADINGS:
2. The case of the Plaintiff was that the Plaintiff's grand-father and thereafter his father-Dwarkadas Jadhavji Nathubhai Ruparelia was the lessee of F.E. Dinshaw Charities in respect of land admeasuring 33,982 square yards bearing Survey No.112 (Part), corresponding to CTS No.2, 2/1 to 4, 3, 4, 4/1 to 5, 5, 5/1 to 8, 6, 6/1 to 63 6/3, 6/82 to 128, 6/143 to 202, 6/211 to 288, 6/296 to 324 and 495, 7, 7/1 to 24 initially under registered lease-deed dated 6 th May, 1948 having term of four years and after expiry of the term, the Trustees continued to accept rent till the year 1985. There was fixation of standard rent vide judgment and order dated 24 th April, 1958 in Civil Appeal No.238 of 1954 in respect of the suit property and other properties.
3. The Plaintiff's father Dwarkadas expired in the year 1988, survived by his wife Pushpa as legatee under registered Will dated sa_mandawgad / Patil-SR (ch) 3 of 43 FA 27-2014.doc 13th November, 1979 and in 2007, Pushpa expired leaving behind Plaintiff as legatee under her registered Will dated 20 th November, 1989 and in any event as one of the legal heirs of the deceased Pushpa.
4. The tender of rent by Pushpa to the Trustees by her Advocate's letter dated 14th December, 1989 was not accepted and the Trustees sought execution of an indemnity bond. The Plaintiff's tenancy was not terminated and is therefore subsisting and no proceedings were initiated for recovery of possession of the suit plot. Certain portions of the land were sub-tenanted by the plaintiff's predecessors to various tenants and is subject matter of proceedings before Small Causes Court including RAE & R Suit No.454/1363 of 1992 and RAE & R Suit No.1362 of 1992 for eviction. There was an offer by F.E. Dinshaw Charities vide letter dated 2nd June, 1992 for purchase of certain portion of leased land.
5. In the year 1942, out of the total land leased, about 3508.770 sqr. mtrs of the suit plot was requisitioned by the Collector on behalf of the defence department, which was de-requistioned by order dated 27th February, 1987 and the plaintiff's predecessors was called upon to take possession. As the land was fully encroached, the plaintiff's predecessors requested the Collector to return vacant possession for sa_mandawgad / Patil-SR (ch) 4 of 43 FA 27-2014.doc which Writ Petition No.1754 of 1996 was filed against the defence department and by order dated 24th September, 1996, the High Court directed the authorities to handover the vacant and peaceful possession of the land. The said portion of land is forming part of the suit land on which the Defendant No.1 have sanctioned the LOI.
6. In the year 1999, some of the hutment dwellers filed Writ Petition No.1930 of 1999 challenging the order dated 24th September, 1996 directing removal of encroachment and by order dated 28 th August, 2001, the High Court directed all parties to maintain status quo with respect to the property. While obtaining LOI, the order of status quo was not disclosed to SRA thus evidencing fraud.
7. Without the knowledge or consent of plaintiff's predecessors- in-title, F.E. Dinshaw Charities executed Conveyance Deed dated 15th April, 1995 of portion of land admeasuring 18490 sqr.mtrs in favour of M/s Rado Construction Company which conveyance was subject to the lease hold rights of the plaintiff as lessee in possession of the suit plot. M/s. Rado Construction Company, was party to the Writ Petition No 1930 of 1999 filed by the hutment dwellers which was affirmed by one Nalin Patel who is conducting Defendant No.2 and they were aware of status quo order. By Conveyance Deed dated 25 th May, 2007, M/s. Rado Construction Company sold the suit property to sa_mandawgad / Patil-SR (ch) 5 of 43 FA 27-2014.doc Defendant No.2 without mentioning the lease hold rights of Plaintiff which evidences fraud.
8. The formation of proposed society of slum-dwellers and the implementation of slum rehabilitation project on the suit plot was objected by Pushpa- Plaintiff's mother and Writ Petition No.7385 of 2005 was filed for direction to SRA to consider her objections, which was allowed by order dated 17 th November, 2005. Though the hearing was fixed on 22nd June, 2006, no oral hearing was given and she was informed that the order will be communicated. Without passing any order, LOI came to be issued in the month of July, 2006 in favour of the Defendant Nos.2 and 3. Writ Petition No 1978 of 2006 was filed by one Ashish Gupta challenging the grant of LOI and by order dated 4th August, 2006, the High Court directed opportunity of hearing to be given to all the parties.
9. The bar of jurisdiction under Section 42 of The Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 [for short "Slum Act"] was not attracted as Defendant No.1 acted in violation of orders passed in Writ Petition No.7385 of 2005, Writ Petition No.1978 of 2006 and Writ Petition No 1754 of 1996 and the action is malafide and ultra vires the provisions of Slum Act. Defendant No.1 does not have authority to grant any sanction for sa_mandawgad / Patil-SR (ch) 6 of 43 FA 27-2014.doc development on private land without consent of the lessee and action impugned in the present suit is the result of fraud practiced by the Defendants and therefore, claim would lie before the Civil Court.
10. The suit came to be resisted by Defendant No.2 raising objection to the jurisdiction as well as to maintainability. It was contended that Pushpa was not lessee of the suit property and had no right, title and interest in the suit property. The lease expired in the year 1967 by efflux of time and was not renewed. The Wills of Dwarkadas or Pushpa are not probated and do not have legal effect. The objections raised by Pushpa were considered by SRA and by order dated 14th July, 2006, SRA rejected the representation on the ground that Pushpa has failed to prove any right in the suit property, if any, as an owner and or lease holder of the suit land which is required to be established before the Competent Authority, which was not done.
11. The Civil Court does not have jurisdiction in view of Section 42 of Slum Act. The LOI and Annexure-II issued in favour of the Defendant No.2 were already the subject matter of challenge before the High Court and held to be valid and legal after the requisite consent of slum-dwellers has been obtained.
12. By notification dated 13th October, 1977, the land property is declared as "slum" under the provisions of Slum Act. The Defendant sa_mandawgad / Patil-SR (ch) 7 of 43 FA 27-2014.doc No.2 has been appointed as developer with consent of more than 70% of the eligible slum-dwellers. After carrying out the requisite compliance, Annexure-II and LOI dated 20 th July, 2006 were issued in favour of the Defendant Nos.2 and 3, which was challenged by some slum-dwellers and was ultimately upheld. It was contended that the order of status quo dated 28th August, 2001 is not in respect of the entire suit property but only part of the suit property i.e. 3508.70 sqr. mtrs. As the status quo order was passed at the instance of slum- dwellers who themselves entered into an agreement for rehabilitation with Defendant No.2, order of status quo as far as LOI is concerned has no bearing.
13. The Defendant Nos.5 and 6 who are the other legal heirs of the deceased Dwarkadas Jadhavji also filed their written statement and claimed equal rights in the suit property.
ISSUES AND FINDINGS OF TRIAL COURT:
14. Evidence was led by Plaintiff, Defendant No.2 and Defendant Nos 5. the Trial Court framed and answered the following issues :
Sr. Issues. Findings. 1. Whether suit is maintainable. Deleted. 2. Whether the suit is in limitation. Does not survive
3. Does Plaintiff prove that there is a cause to file this Does not survive. suit ?
4. Does Plaintiff prove that they have any right title or In the affirmative interest in the suit property?
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5. Whether this court has jurisdiction to try the Suit In the Negative
unless the plaintiff obtain the declaration from the competent authority that they are Statutory tenants in the suit property.
6. Whether the suit is barred by principle of res-judicata In the negative. particularly in context of of reliefs sought in prayer [c] of the plaint.
7. Does plaintiff prove that the Defendant obtained the In the affirmative. order from the defendant no.1 practicing fraud as alleged ?
8. Does plaintiff prove that defendant no.1 has In the affirmative. transgressed their power while sanctioning of Annexure II and letter of intent in favour of Defendant no.2.
9. Whether the plaintiff is entitled for any of the reliefs In the Affirmative. claimed.
10. Whether the defendant no.2 is entitled for In the negative. compensatory cost.
15. The Trial Court did not answer the issue of maintainability as the same was deleted by order of 26th June, 2011. The Trial Court decided that the status of Plaintiff was of tenant holding over and his tenancy is subsisting by noting that even after the expiry of lease period on 30th April, 1952, the Plaintiff's pre-decessors continued to pay rent till the year 1985 and was entitled to be protected under Section 116 of Transfer of Property Act. The Trial Court noted that M/s Rado Con- struction Company was aware of the tenancy rights of Dwarkadas and the tenancy has not been terminated and thus there was no require- ment of seeking declaration to that effect as the suit has been filed by sa_mandawgad / Patil-SR (ch) 9 of 43 FA 27-2014.doc the Plaintiff assuming to be lessee of suit property. The Trial Court held that the right of ownership or lease hold right in the property can be determined by the Civil Court.
16. On the legality of sanction of slum rehabilitation scheme by SRA, the Trial Court held that as lease hold rights of Pushpa contin- ued, by surpassing the lease hold rights of Plaintiff, the Defendant No.1-SRA and Defendant No.2 are not entitled to implement the slum scheme over the suit property. It held that SRA without any compe- tency rejected Pushpa's representation and held that SRA and Defen- dant No.2 acted in collusion to sanction slum rehabilitation scheme by defeating leasehold rights of the Plaintiff's predecessor. It further held that as High Court has issued order of status quo, the injunction can be granted against carrying out any development activities on the suit plot.
SUBMISSIONS:
17. Mr. Cama, Learned Counsel appearing for the Appellant has taken this Court through the pleadings in plaint and would submit that bar of jurisdiction under Section 42 of Slum Act was pleaded to not be applicable on the ground of fraud based on status quo order, the absence of recognition of lease hold rights of Plaintiff's predeces-
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sors in deed of conveyance between executed between M/s Rado Construction Company and Defendant No.2.
18. He submits that the slum notification was issued on 30 th Sep- tember, 1977 and on 25th February, 1987, the Collector passed an or- der derequisitioning land admeasuring 3508.70 sqr.mtrs. addressed to Dwarkadas, which property was Survey No 70(pt), which has noth- ing to do with suit property, which is survey No.112 (part). He would further point out to the cross examination of Maintenance Surveyor admitting that he does not have any record to show that Survey No.112 was previously Survey No.70. He would submit that in a previ- ous suit filed by slum dwellers challenging the sanction of slum scheme, there is specific reference of Survey No.112, which shows that slum scheme is being implemented on Survey No.112 and not Survey No.70. He submits that the order of status quo, even if ac- cepted, is in respect of Survey No. 70(part), and there is no question of fraud by suppressing the order of status quo. He submits that in any case the order of status quo has to be read in light of the relief which was sought in the writ petition and would mean stay on the removal of encroachment.
19. He would further submit that the plaintiff claims his rights through the un-probated Wills of Dwarkadas and Pushpa. He has sa_mandawgad / Patil-SR (ch) 11 of 43 FA 27-2014.doc taken this Court through the communications between Pushpa and F.E. Dinshaw Charities to contend that request of Pushpa to be ac- cepted as tenant was to be considered and was not accepted. He has taken this Court through the recitals in the conveyance Deed to show the recitals about the tenancy of Pushpa not being accepted He would submit that the conveyance contains a recital about the status quo order passed by the High Court. He submits that in view thereof, one of the allegations of fraud was that the conveyance between De- fendant No.2 and M/s Rado Construction Company did not refer to the leasehold rights of Pushpa is factually not established. He would further submit that the admitted position is that the lease was exist- ing only till the year 1985 and no rent was paid thereafter and there- fore the status of the plaintiff's predecessor as also of the plaintiff would be tenant at sufferance who is only a trespasser.
20. He would submit that the objection to slum scheme was raised by Pushpa claiming to be a lease-holder of the said property and showing willingness to execute the slum rehabilitation scheme. He submits that objection of Pushpa was considered by SRA and by order dated 14th July, 2006, the SRA held that the authorities are not com- petent to go into the issue of ownership title or to make correction in the property card and the name of Pushpa is not included in the own-
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ership title and therefore, there is no merit in the objection and re- jected the representation. He submits that the said order was not challenged by Pushpa either before the High Power Committee or the High Court and instead the present suit came to be filed challenging the Annexure II and the LOI. He submits that in view of the findings of SRA, it was necessary for Plaintiff to seek declaration of tenancy be- fore Small Causes Court which was not done. He submits that the challenge to LOI without obtaining declaration of tenancy is not main- tainable.
21. He would further submit that an application came to be filed un- der Section 9A of CPC raising issue of jurisdiction and maintainability which came to be rejected and was carried to the High Court which granted stay to the impugned order by order dated 22 nd March, 2012. He submits that the stay order would revive the objection of jurisdic- tion and therefore the same was required to be framed and decided.
22. He would submit that even accepting the tenancy of Plaintiff, even the tenant cannot question the slum scheme and the right is re- stricted to money claim. He submits that considering the statutory scheme of Slum Act, the only right available to the owner is to submit a proposal to SRA for implementing the slum scheme and once the property is notified as slum, the same cannot be questioned even by sa_mandawgad / Patil-SR (ch) 13 of 43 FA 27-2014.doc the owner of property. He submits that right of lessee cannot be higher than that of the owner.
23. He would further submit that in the present case, the Plaintiff has mounted a challenge to the slum scheme without seeking any dec- laration of title. The rights of Plaintiff as a lessee of the said property was itself objected to and that is the reason why SRA had declined to go into the right of Plaintiff while adjudicating objections to the slum scheme. He submits that the Trial Court proceeded to grant a decla- ration of leasehold rights by usurping the jurisdiction of Small Causes Court. In support of his submissions he relies upon following deci- sions :
State of Maharashtra v. Abdul Sattar Haji Usman1 ; Pant Nagar Mhatma Phule CHS Ltd. v. State of Maharashtra 2 ; Lokhandwala Infrastructure Pvt. Ltd v. Om Dattaji Rahiwasi Seva Sangh3 ;
Rajan Garg, Resolution Professional of Truly Creative Developers pvt. Ltd v. CEO, SRA4 ;
Deena pramod Balodota v. State of Maharashtra5 ; Veekaylal Investment vs. State of Maharashtra6 ; Lullu Vas v. State of Maharashtra7 ;
Anatula Sudhakar v. P.Buchi Reddy8 ;
R. V. Bhupal Prasad v. State of A.P.9 1 2017 SCC OnLine Bom 3951.
2 2014 SCC OnLine Bom 1945.
3 [2011] 4 Mh.LJ 216.
4 2024 SSC OnLine Bom 1060.
5 2022 SCC Online Bom 5102.
6 AIR OnLine 2019 Bom 3208.
7 (2019) 9 SCC 175.
8 [2008] 4 SCC 594.
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Pant Nagar Mhatma Phule CHS Ltd. v. State of Maharashtra 10;
Lokhandawala Infrastructure Pvt. Ltd. v. Dhobighat Compound Rahiwasi Seva Sangh11.
24. Per Contra Mr. Damle, learned Senior Advocate appearing for Plaintiff would submit that there are 2 aspects of the matter, firstly, that there is no lease existing in favour of the Plaintiff, and secondly bar under Section 42 of the Slum Act. Taking the first submission on the existence of lease, he submits that by judgment of 21 st June 1957 passed in CRA No.990 of 1956 instituted by the Plaintiff's grandfather, the standard rent was fixed. He submits that therefore Rent Act was applicable and without any notice of termination, conveyance has been executed in favour of M/s. Rado Construction Company. He submits that as the Plaintiff's grandfather was held to be tenant of the premises, argument of non payment of rent does not survive. He would further submit that in the conveyance executed between the F.E. Dinshaw Charities and and Rado Construction Company , there is specific recital that Plaintiff's grandfather and father were accepted as tenant which continued even after the expiry of lease and unless tenancy is terminated, rights continue. He submits that there is no concept of ceasing to be a tenant once the status as tenant has been upheld. He submits that it was not necessary for the Trial Court to go 9 [1995] 5 SCC 698.
10 Bom HC C.A. (Review) No. 2/2015 dtd. 27-4-2015. 11 Bom HC OOCJ Notice of Motion Nil of 2011 in Suit (Ld.) No. 813/2011 dtd. 5-4-2011.
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into the status of the Plaintiff in view of the material on record to demonstrate acceptance of Plaintiff's predecessor's tenancy.
25. He would further submit that by order of 24 th September 1996 passed in Writ Petition No.1754 of 1996 filed by the Plaintiff's mother seeking vacant possession of the property, the High Court has accepted the Plaintiff's mother's right and has directed handing over of the possession. He submits that therefore the right has clearly been established and there was no requirement of seeking declaration of leasehold rights. He would further submit that M/s Rado Construction Company had also filed Petition against the order dated 24th September, 1996, which shows that status quo was in respect of the portion of suit property.
26. He would further submit that in Writ Petition No.1978 of 2006 filed by one of the slum dwellers, the Division Bench has held that there is total non application of mind by Respondent No.2-Authorities therein while sanctioning Annexure-II. He submits that Division Bench remanded the matter to the Respondent No.2 to decide who has 70% support in the slum scheme and Annexure-II was directed to be revisited and therefore no help can be derived from the finalisation of Annexure-II. He would further submit that by order of 14 th July 2006, SRA, while considering the objections raised by the Plaintiff's mother sa_mandawgad / Patil-SR (ch) 16 of 43 FA 27-2014.doc to the sanctioning of slum scheme, has not adjudicated the objections on the ground of competency to decide lease hold rights.
27. On the aspect of bar under Section 42 of Slum Act, he submits that the Plaintiff claims a right in the land on which slum scheme is being implemented and therefore his grievance cannot be adjudicated by SRA. He submits that Plaintiff is not challenging the LoI but that LoI cannot be issued without consent of Plaintiff. He would further submit that the Trial Court has framed specific issue as regards right, title and interest of the Plaintiff in the suit property and as an injunction was sought, the Trial Court was competent to go into the question of title.
28. He would further submit that the order of status quo was not sought to be modified by the Appellant. He would submit that objection raised by the Appellant is that the remedy of raising objection to slum scheme has already been exhausted has been dealt with by the Trial Court by holding that Civil Court can determine the right of ownership or leasehold rights in the property. He would further submit that the Trial Court held that right of the Plaintiff as lessee in the suit property is still existing even though same is not exclusive.
29. He would further submit that the issue of jurisdiction will have to be decided in the present proceedings as Civil Court did not decide the same in view of stay granted. He has taken this Court through the sa_mandawgad / Patil-SR (ch) 17 of 43 FA 27-2014.doc averments in plaint and would submit that the bar of jurisdiction will not apply in view of the clear pleading of fraud set out in plaint. He submits that the proposed society is party to the suit and would therefore be bound by the outcome of proceedings. He relies upon following decisions :
Om Shri Sai Developers v. State of Maharashtra12 ; Qari Mohammad Zakir Hussain v. MCGM13 ;
Abdul Sattar Hazi Usman v. Arch Bishop of Bombay 14 ; Ashok B. Nigudkar v. Sudhadra P. Nirgudkar15 .
30. In rejoinder, Mr. Cama submits that agreement specifically recites that Plaintiff's mother was not recognised as tenant. He submits that as a lessee, the only right which the Plaintiff would have would be money claim either against the lessor or against the State Government in event acquisition takes place. He submits that Plaintiff claiming to be a tenant has no higher rights than that of a owner. He submits that argument of Mr. Damle that there is no need to seek declaration of tenancy cannot be accepted as the title itself is in dispute.
12 2010(4) All.M.R. 198.
13 2002(2) Bom CR 98.
14 2016(6) Bom CR 416.
15 2013(4) All MR 753.
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POINTS FOR CONSIDERATION:
(1) Whether in absence of seeking relief of declaration of
Plaintiff's tenancy title, the validity of the slum rehabilitation scheme could have been examined at the instance of the Plaintiff. (2) Whether the Civil Court possessed the jurisdiction to determine the lease hold rights of the Plaintiff in the suit property. (3) Whether the ground on which the objection was raised to the sanctions and permissions can be said to constitute fraud to lift the bar of Section 42 of Slum Act.
(4) Whether in absence of finding of fraud, the Civil Court had the jurisdiction to declare the slum scheme as illegal and void. (5) Whether challenge to slum scheme is maintainable on ground of absence of consent of owner/lessee of the concerned property. REASONS AND CONCLUSION:
31. Dealing first with the appropriate reliefs required to be sought in the suit, the Plaintiff's grandfather was the original lessee under the lease dated 6th May, 1984. The Plaintiff's grandfather applied for fixation of standard rent, which was allowed by the Trial Court and rejected by the Appellate Bench holding that Bombay Rents Hotel and Lodging House Rates Control Act, 1947(Rent Act of 1947) had no applicability to the plots of land. In Civil Revision Application filed against the rejection, the High Court vide order dated 21 st June 1957 sa_mandawgad / Patil-SR (ch) 19 of 43 FA 27-2014.doc held that Rent Act applied and upheld the order of Trial Court fixing the standard rent.
32. The tenancy of the Plaintiff's grandfather and father were recognised in the conveyance dated 15 th April, 1995 executed by F.E. Dinshaw Charities in favour of M/s Rado Construction Company. The Deed of Conveyance contains recital about the tenancy of the Plaintiff's father, who expired on 10 th September, 1989. The Deed further recites that Plaintiff's mother Pushpa had forwarded the rent cheque for period from 1st February, 1985 to 31st January, 1990 which was not accepted since Pushpa had not satisfied that she had inherited the tenancy rights.
33. The Rent Act of 1947 was repealed by the Maharashtra Rent Control Act, 1999 which did not afford protection to open plot of land.
It cannot be disputed that there is no notice of termination of tenancy or any proceedings instituted for recovery of possession of suit property by the owners of the suit property.
34. The plaint did not seek relief of declaration of Plaintiff's tenancy and indeed it could not have, as the jurisdiction vested in the specialised Court under the rent control legislation. Mr. Cama would submit that the Trial Court did not have the jurisdiction to render finding on Plaintiff's tenancy rights, whereas Mr. Damle would submit that it was not necessary to seek declaration of tenancy and the Trial sa_mandawgad / Patil-SR (ch) 20 of 43 FA 27-2014.doc Court need not have have gone into the issue of lease hold rights of the Plaintiff in view of the fixation of standard rent of the suit property in the year 1957 and in absence of termination of tenancy. The issue here is slightly different. The substantive relief sought by the Plaintiff was :
"(c) That this Hon'ble Court be pleased to declare that sanctioned and/or permission granted by the Defendant No.1 including the Letter of Intent dated 20th July, 2006 for development of the suit plot of land bearing Survey No 112(part) having corresponding CTS No.2, 2/1 to 4, 3, 4, 4/1 to 15, 5, 5/1 to 8, 6(part), 6/1 to 63, 6/82 to 128, 6/143 to 202, 6/211 to 288, 6/296 to 324, 6/337 to 495, 7, 7/1 to 24 of Village Malad and lying at Mahadevbhai Desai Road, Kandivali (East), Mumbai 400 101 totally admeasuring 21,631 Sq. Mtrs without the consent of the Plaintiff is illegal, bad in law and ultra vires the provision of Slum Act as well as the order passed by the Hon'ble High Court in Writ Petition No.7385 of 2005 and such the same is liable to be quashed and set aside."
(emphasis supplied)
35. The Plaint does not challenge the implementation of the slum rehabilitation scheme as being bad in law per se but for the reason that without Plaintiff's consent, the same could not have been implemented on the suit property. The representation of Pushpa to SRA was that she held lease hold rights in the suit property and without her consent the scheme submitted by the Appellant herein cannot be sanctioned by SRA. The Authority noted that the property register card shows that conveyance deed has been executed in favour of M/s Rado Construction Company who has given the power of attorney to Appellants herein and therefore the proposal for sa_mandawgad / Patil-SR (ch) 21 of 43 FA 27-2014.doc implementation of slum rehabilitation scheme submitted by Appellant can be considered by SRA. It held that the property register card does not show the name of Pushpaben D. Ruparelia in the ownership/title column and that the rights are required to be established before the Competent Authority under the Maharashtra Land Revenue Code. It held that SRA is not competent to go into issues of ownership/title of lands or to make corrections in the property register card.
36. The objection to the implementation of SRA Scheme was rejected in the absence of any evidence of Pushpa's right in the suit property. The tenancy rights of Pushpa were disputed by F.E. Dinshaw Charities as Pushpa had not satisfied that she had inherited the tenancy rights. It was thus imperative for the Plaintiff to seek declaration of tenancy title in the suit property under general law of inheritance. Section 35 of The Maharashtra Rent Control Act, 1999 provides that Section 33 or 34 of the Act does not bar a party to the suit, proceeding or appeal in which question of title to premises arises and is determined, from suing in a competent court to establish his title to such premises.
37. In Rajaram Brindavan Upadhyaya v. Ramraj Raghunath Updhyaya16, the issue for consideration before the Hon'ble Division 16 1977 SCC Online Bom 73.
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Bench of this Court was whether Section 5(11)(c) of Rent Act of 1947 should yield to superior right of inheritance to tenancy vesting in the heir on death of tenant under personal law of parties. In facts of that case, the plaintiffs' suit was for declaration that they alone are tenants of the suit room and Defendant No.1 has no right, title or interest therein, and for possession to the exclusion of Defendant No.1. The Hon'ble Division Bench considered the suit is de hors the Rent Act on the basis of title and held as under:
"12. Section 29A of the Rent Act gives a clear indication that the finding given by a Court under the Rent Act that a certain person is a tenant within the meaning of s.5(11)(c) is not meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party. That section provides:
"29A. Nothing contained in section 28 or 29 shall be deemed to bar a party to a suit, proceeding or appeal mentioned therein in which a question of title to premises arises and is determined, from suing in a competent court to establish his title to such premises."
13. In the instant case, for example, let us suppose that some proceedings were taken in the special Court under the Rent Act on the death of Brindavan to decide who was the tenant within the meaning of s.5(11)(c) of the Rent Act and in those proceedings the finding was given that Defendant No. 1 was the tenant and not the plaintiffs. On the plain language of s.29A, the plaintiffs were not debarred from wing in a competent Court to establish their title to the suit room on the ground that, as the heirs of the original tenant, they alone were entitled to inherit the right of tenancy in the suit room. If there were no bar to the plaintiffs filing such a suit, it is clear that on their succeeding in establishing their title, the declaration given in favour of Defendant No.1 under s. 5(11)(c) will cease to operate and the plaintiffs alone will have to be regarded the tenants. In other words, the provisions of s. 5(11)
(c) of the Rent Act are not meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party. On the other hand, the provisions of s. 5(11)(c) must yield to the superior sa_mandawgad / Patil-SR (ch) 23 of 43 FA 27-2014.doc right of inheritance to the tenancy vesting in the heirs on the death of the tenant under the personal law of the party. .................
26. Mr. Bandiwadekar on behalf of respondent No.1 contended that the present suit was by tenants to which landlords had been made parties and it was of a nature falling under s. 28 of the Rent Act. It was, therefore, not open for the regular civil Court to entertain and try the suit. In the alternative, he contended that on the allegations in the plaint, this would be a suit under the provisions of the Rent Act and, therefore, a declaration that the plaintiffs are tenants could be given only under the provisions of s. 5(11)(c) of the Rent Act. The plaintiffs, however, did not satisfy one of the qualifications necessary under that section because both the Courts below have found that they were not residing with the deceased tenant at the time of the tenant's death. The plaintiffs' suit had, therefore, to be dismissed.
27. We are unable to see how the plaintiffs' suit can be of the nature mentioned in s.28 of the Rent Act. Section 28 provides what kinds of suits, proceedings or applications can be entertained and tried by the Court having special jurisdiction under the Rent Act. If we make an analysis of the section, the following kinds of suits, proceedings or applications can be entertained, tried or dealt with by the special Court under the Rent Act:
(1) a suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of premises; (2) a suit or proceeding between a licensor and a licensee relating to the recovery of the licence fee or charge; (3) an application made under the Rent Act; and (4) a claim made or question raised arising out of the Rent Act or any of its provisions.
28. It will be seen that the plaintiffs' present suit does not fall in any of the categories mentioned in s. 28 of the Rent Act, which fall within the exclusive jurisdiction of the special Court created under the Rent Act. Although the plaintiffs are claiming to be the tenants, that is only a description of their title. But their suit is still based on title and such a suit does not fall in any of the categories of the matters that can be tried by the special Court."
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38. The suit can, thus, be filed to establish title to the suit property under the general law of inheritance, the title not being of ownership but of tenancy. In present case, it was not necessary for the Plaintiff to be driven to the Small Causes Court for seeking declaration of tenancy. The tenancy of the Plaintiff's predecessor stood established by the order of Hon'ble Division Bench of this Court which was also noted in the conveyance deed executed between F.E. Dinshaw Trust and M/s. Rado Construction Company.
39. The Plaintiff's case for challenging the implementation of the slum rehabilitation scheme on the suit property without Plaintiff's consent was premised on right to the suit property by inheritance of tenancy under general law of inheritance. As the title documents of the suit property did not reflect Pushpa's tenancy rights in the suit property, it was necessary to seek specific substantive relief of declaration of tenancy title to the suit property. Though the Trial Court framed an issue of Plaintiff's right title and interest in the suit property, in absence of specific relief of declaration of tenancy right to the suit property based on general law of inheritance, the Trial Court misdirected itself and examined whether the tenancy rights of the Plaintiff still subsisted in the suit property, which issue could be decided only by the Small Causes Court.
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40. The issue to be adjudicated by the Trial Court was whether the tenancy rights of the original tenant have been inherited by the present Plaintiff under the general law of inheritance and thus Plaintiff had acquired tenancy title to the suit property , which declaration was necessary to sustain the challenge to the sanctions and permissions granted by SRA without Plaintiff's consent. Instead of adjudicating the said issue, the Trial Court has delved into the issue of status of Plaintiff qua the suit property and has rendered a finding that the tenancy of Plaintiff is still in existence. The declaration of tenancy could be granted only by the Small Causes Court and not by the Civil Court.
41. The Slum Rehabilitation Authority had specifically rejected the objection on the ground that Pushpa's right to the suit property is not reflected in the property register cards. The tenancy rights were also disputed by the owners of the suit property. In such eventuality, the options available to the Plaintiff was to approach the Small Causes Court for declaration of tenancy or to seek appropriate relief of declaration of tenancy title to the suit property under the general law of inheritance. In absence of the appropriate relief, the Trial Court could not have examined the validity of slum scheme. The Trial Court opines that the Plaintiff has filed the suit assuming to be lessee and therefore declaration to that effect is not at all required, which is sa_mandawgad / Patil-SR (ch) 26 of 43 FA 27-2014.doc clearly unsustainable as it was necessary for the Plaintiff to establish that he has inherited the tenancy right under the general law of inheritance to be entitled to seek that absent his consent, the slum scheme could not be implemented. Whether the consent of Plaintiff was required or not for implementation of slum scheme is discussed later in the judgment, however, it was necessary for the Plaintiff to seek the appropriate relief of declaration of tenancy title to the suit property.
42. The submission that as injunction was sought, the issue of right title and interest could be gone into cannot be sustained as there was cloud over the Plaintiff's tenancy title and it was necessary for the Plaintiff to seek declaration of tenancy title. [See Anathula Sudhakar v. P.Buchi Reddy (supra)].
43. Coming to the issue of jurisdiction, the said aspect arises in two contexts first in the context of determining the tenancy rights of the Plaintiff and secondly in the context of bar imposed by Section 42 of Slum Act.
44. The impugned judgment is substantially dedicated to determining the Plaintiff's status as tenant of the suit property as to whether the Plaintiff was tenant at sufferance or tenant holding over after determination of lease, which was clearly outside the jurisdiction of Civil Court. Such declaration of status of Plaintiff as tenant could sa_mandawgad / Patil-SR (ch) 27 of 43 FA 27-2014.doc be granted only by the Small Causes Court. Mr. Damle would contend that the said discussion is unnecessary in view of Plaintiff's tenancy being accepted. The said submission is partly right as the Plaintiff's father's tenancy was accepted but the inheritance of the father's tenancy by the mother and subsequently by the Plaintiff was required to be established, which has not been done. The said submission accepts the fact that Civil Court does not have the jurisdiction to declare the tenancy rights of the Plaintiff in the suit property.
45. Coming to the embargo on Civil Court's jurisdiction under the Slum Act, Section 42 of Slum Act bars the jurisdiction of Civil Court in respect of any matter which the Appellate Authority, Competent Authority, Grievance Redressal Committee or the Tribunal is empowered under the Slum Act to determine and no Injunction can be granted by any Court or any authority in respect of any action taken or to be taken in pursuance of any power conferred by the Slum Act. The Plaintiff seeks to challenge the Letter of Intent issued by the SRA, which issue was solely within the jurisdiction of slum authorities. In essence the dispute was as to who should develop the property. The representation dated 23rd December, 2006 addressed by the Plaintiff to the Slum Rehabilitation Authority claimed a right to execute the Slum Rehabilitation Scheme. The jurisdiction thus vested in the sa_mandawgad / Patil-SR (ch) 28 of 43 FA 27-2014.doc authorities constituted under the Slum Rehabilitation Act to consider the person in whose favour the Letter of Intent should be issued.
46. The Plaint seeks declaration that slum rehabilitation scheme is illegal as the same is sought to be implemented without the Plaintiffs consent. The statutory scheme of the Slum Act does not make the implementation of the slum rehabilitation scheme dependent on the consent of the owner or landholder. The limited right conferred on the owner/lessee is the preferential right to implement the slum scheme or monetary claim.
47. The challenge to the Letter of Intent is an issue solely within the jurisdiction of Slum Authorities. The right available to a owner/ land holder to claim preferential right to develop, seek acquisition of land, compensation etc are all issues which can be adjudicated by the Slum Authorities. The substantive prayer (c) is itself defective as the framing of slum rehabilitation scheme and implementation thereof does not require the consent of the owner. The sine qua non for exercising the rights to implement the slum rehabilitation scheme was title to the suit property either of ownership or tenancy and without such declaration, the Authorities could not have recognised the rights of the Plaintiff.
48. Ignoring the defective nature of prayers, the Civil Court's jurisdiction was invoked on ground of fraud. Upon my reading of the sa_mandawgad / Patil-SR (ch) 29 of 43 FA 27-2014.doc plaint, the pleadings on fraud which can be culled out from the plaint are :
(a) That, conveyance between F. E. Dinshaw Charities and M/s Rado Construction Company of 15 th April 1995 makes the sale subject to the leasehold rights of Plaintiff who is in possession of the suit plot of land, whereas the Conveyance between M/s. Rado Construction Company and Defendant No.2 does not mention the Plaintiff's leasehold right.
(b) That, M/s Rado Construction Company is aware of the order of status quo passed on 28 th August 2001 by the High Court in Writ Petition No 1930 of 1991 filed by slum dwellers and that Nalin Patel, who is partner of Defendant No.2 was the power of attorney holder and was also aware of the status quo order passed which has not been disclosed to the Slum Rehabilitation Authority while seeking Letter of Intent.
(c) The Slum Rehabilitation Authority has no authority to sanction slum rehabilitation scheme on private land without consent of the owner and lessee and the act done by the authority is result of fraud and collusion.
49. As a prelude to considering the case of fraud as the leasehold rights of Plaintiff are not recognised, it is necessary to consider the rights of an owner of the land on which slum rehabilitation scheme is proposed to be sanctioned. The Slum Act has been enacted with the object of making better provision for the improvement and clearance of slum areas in the State and for their redevelopment. As held in case sa_mandawgad / Patil-SR (ch) 30 of 43 FA 27-2014.doc of Deena Baldota vs State of Maharashtra (supra), the statutory scheme of the Slum Act provides for declaration of an area as slum or slum rehabilitation area and implementation of slum rehabilitation scheme either through the land-holders/owners and/or the occupants or by entrusting the same to outside agency or through process of acquisition. Section 3B(5) of Slum Act and in particular sub section (g) provides for development of slum rehabilitation area by the land holders and occupants by themselves or through the developer and the option available to the SRA for taking up such development in event of non participation of the landholders or occupants if they do not come forward within a reasonable time. Section 13(1) vests the power in the Authority to entrust the work of development to any agency in event the landholders or occupants do not come forward within a reasonable time. A cumulative reading of the statutory provisions shows conferment of preferential right on the owner of the land to re-develop the slum rehabilitation area albeit with a corresponding duty to submit a scheme within reasonable time.
50. Section 14 of Slum Act makes provisions for acquisition of the land by the State Government to enable the Authority to execute any work of improvement or to redevelop any slum area. Under Section 16 and 17 of Slum Act every person having any interest in any land acquired under the Act shall be entitled to compensation. The right sa_mandawgad / Patil-SR (ch) 31 of 43 FA 27-2014.doc which accrues to an owner of the land on which the slum rehabilitation scheme is proposed is preferential right to implement the slum scheme or monetary claim upon acquisition. The statutory provisions of Slum Act does not confer any right on the owner to stultify the slum scheme on absence of consent. The statutory scheme envisages consent of 70% slum dwellers for re-development through developer appointed by them. In Om Shree Sai Developers v. State of Maharashtra (supra), the Hon'ble Division Bench held in paragraph 9 as under:
"Considering the object and purpose of the "Slum Act", the slum rehabilitation scheme cannot remain at standstill status as it is required to be expeditiously implemented bearing in mind the intended welfare measures. The Competent Authority under the Slum Act is required to take early decision and issue directions to ensure smooth implementation of S.R.S. by overcoming obstacles or hurdles. Disputed questions of facts, if involved, are at the best left to be resolved by alternative remedy i.e., for breach of contract monetary compensation, etc. The High Power Committee constituted by the State Government, which was approached by the petitioner, observed thus:
".............................
4. Considering the arguments advanced by the concerned parties it seems that there is private dispute between the two developers and therefore the applicant is at liberty to approach proper Court of Law."
Therefore, the petitioner is not left remediless. The petitioner can claim monetary compensation by approaching the competent Civil Court for the alleged breach of contract."
51. In Lullu Vas vs State of Maharashtra (supra), the Hon'ble Apex Court observed thus in paragraph 29 :
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"29. .....Moreover, the Appellants can be adequately compensated in the event of their success in the trial and, as such, have failed to prove any irreparable injury which can not be remedied..........."
52. The Plaintiff who claims to be lessee of the land cannot claim any right higher than those conferred on the owner of the land/land holder/occupants under the statutory provisions.
53. The implementation of Slum Scheme by the authorities through the Defendant No.2 cannot be said to be result of fraud because of non recognition of Plaintiff's rights as lessee, when the title documents of suit property does not reflect the Plaintiff or his predecessors name. The appropriate course was to adopt necessary remedy to seek declaration of the Plaintiff's lease hold rights and thereafter exercise the rights available to a lessee under the Slum Act. Instead the Plaintiff has challenged the validity of the Letter of Intent as the same has been issued without his consent. It is the submission of Mr. Damle that the Plaintiff claims right in the land which cannot be adjudicated by the slum authorities. The right in land is a dispute inter se between the owner and lessee and cannot constitute a ground to challenge the LOI. Upon resolution of the dispute in appropriate forum, the rights available to the recognised lessee could be exercised, however, by no stretch of imagination, the inter se dispute could stall the slum implementation scheme. In Pant Nagar Mahatma sa_mandawgad / Patil-SR (ch) 33 of 43 FA 27-2014.doc Phule Co-operative Housing Society Ltd (supra), it is held that challenge to Letter of Intent is directly covered under Section 42 of Slum Act.
54. In Qari Mohammed Zakir Hussain v. MCGM (supra), the Co- ordinate Bench has held in paragraph 15 and 16 as under:
"15. On conjoint reading of the aforesaid provisions, it would appear that no suit or prosecution can be maintained against the competent authority or against any person acting under its authority for anything which is in good faith done or intended to be done under the said Act or Rules made thereunder. Section 42 of the Act opens with the expression. "Save as otherwise expressly provided in this Act" followed by, "no Civil Court shall have jurisdiction in respect of any matter which the administrator, competent authority or Tribunal is empowered by or under this Act, to determine, and no injunction shall 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. "As a necessary corollary it follows that if the allegation is that the act done or intended to be done by the concerned authority is the result of fraud, collusion or mala fide and is clearly in transgression of the powers conferred on that person or authority under the Act or Rules, in such a case, the allegation would be actionable, before the Civil Court being one of civil nature to be tried only by the Civil Court by virtue of section 9 of the Code of Civil Procedure Code.
16. It is well settled that exclusion of the jurisdiction of the Civil Court is not to be readily inferred but such exclusion must either be explicity expressed or clearly implied. It is also well settled that even if the jurisdiction it so excluded the Civil Courts have jurisdiction is examine into the issues where the provisions of the Act have not been complied with, or statutory Tribunal has not acted in conformity with the fundamental judicial procedure. On the other hand, a suit in a Civil Court can always be maintained to question the order of a Tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said Tribunal abuses its power or does not act under the Act but in violation of its provisions. In other words, if the suit proceeds on the premises that the offending act has been done not in good faith, then there is no bar for such a suit."
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55. Applying the said principles to the facts of the present case, the conveyance executed between M/s. Rado Construction Company and Defendant No.2 recognises the lease hold rights of the Plaintiff's father, who continued to pay rent till 31 st January 1985 and that after his death 10th September 1989, the rent forwarded by the Plaintiff's mother was not accepted as she had not satisfied that she has inherited the tenancy rights. The conveyance in fact refutes the acquisition of Plaintiff's mothers tenancy rights under law of inheritance. The Letter of Intent has been issued on 20 th July, 2006 prior to the execution of the conveyance between M/s Rado Construction Company and Defendant No.2 in the year 2007. The proposal for implementation of the slum scheme was submitted by the Defendant No.2 as Constituted Attorney of the Owner of the property pursuant to the consent of 70% slum dwellers. The objection raised by Pushpaben was rejected by SRA vide order dated 14th July, 2006. Subsequently, in the year 2007, the conveyance was executed between M/s Rado Construction Company and Defendant No.2. The issuance of Letter of Intent in favour of Defendant No.2 was not founded on the conveyance executed between M/s Rado Construction Company and Defendant No.2, which was not even executed at that stage. As it is the Plaintiff's own case that the conveyance with M/s Rado Construction Company recognised the sa_mandawgad / Patil-SR (ch) 35 of 43 FA 27-2014.doc Plaintiff's predecessor's right, the Letter of Intent cannot be said to be result of fraud by reason of suppression of lease hold rights in subsequent conveyance between M/s Rado Construction Company and Defendant No.2.
56. Apart from the above, perusal of the conveyance between M/s Rado Construction Company and Defendant No.2 shows that the conveyance makes a mention of the recitals in the Conveyance Deed of M/s. Rado Construction Company that Ruparalia ceased to be a tenant and has stopped paying rent. That in any event the rent has not been accepted after the demise of Dwarkadas Ruparelia although tendered by Pushpaben and no proceedings has been adopted by Dwarkadas against the Trust prior to the property being conveyed in favour of M/s Rado Construction. The conveyance deed refers to the factual position and there is no suppression.
57. The recitals in the Trust Deed are in consonance with the documents on record that after 1985 no rent was accepted from the mother of Plaintiff and the recital is that Pushpa has not been accepted as tenant. The rejection of the Pushpa's objection to slum rehabilitation scheme was not by reason of absence of acknowledgment of Pushpa's right in the conveyance executed but for the reason that Pushpa's name was not reflected in the Ownership/ title columns of the property register card and therefore SRA sa_mandawgad / Patil-SR (ch) 36 of 43 FA 27-2014.doc observed that the rights have to be established under the Maharashtra Land Revenue Code, 1966 for updating the property register card. SRA is not competent to go into the issue of ownership and title of the land or to make corrections in the property register card.
58. The Slum Rehabilitation Authority was right in observing that title issue or updation of property register card is not within their domain. Accepting for sake of arguments that the Plaintiff was not required to seek any declaration of subsistence of tenancy, in order to sustain any objection to the proposed slum rehabilitation scheme, the title documents should reflect the Plaintiff's name and appropriate steps in that regard were required to be taken.
59. The Defendant No.2 earlier held power of attorney of M/s Rado Construction Company, in whose favour conveyance has been executed by the erstwhile owners through a validly registered document. M/s Rado Construction Company has thereafter executed a registered Conveyance in favour of Defendant No.2. The ownership rights have been transferred in accordance with law and is not questioned. The property register card was accordingly updated. In the absence of any lease hold rights in the suit property reflected in the title documents, the Slum Authorities have rightly considered the sa_mandawgad / Patil-SR (ch) 37 of 43 FA 27-2014.doc proposal submitted by the owner for implementation of slum rehabilitation scheme.
60. I am unable to accept the contention that the non recognition of the Pushpa's lease hold rights in the conveyance between M/s Rado Construction Company and Defendant No.2 constitutes fraud in issuance of Letter of Intent. The Plaintiff as a lease holder, at the highest, would have the right to submit a rival scheme for implementation of the slum rehabilitation scheme, however, it cannot be accepted that without the consent of the lease holder, the slum scheme cannot be implemented or that the same constitutes fraud by the authorities.
61. As far as suppression of status quo order passed by the High Court is concerned, the undisputed facts leading to passing of order of status quo is that in the year 1942, 3508.70 square meters of land forming part of Survey No 70 was requisitioned by the Collector on behalf of the Defence Department which came to be de-requisitioned in the year 1987. As the land was substantially encroached Writ Petition No.1754 of 1996 was filed by Pushpa against the Government of Maharashtra seeking direction to handover vacant and peaceful possession by removing the encroachments. Vide order dated 24 th September, 1996 , the High Court directed the authorities to remove the encroachments and hand over vacant and peaceful possession to sa_mandawgad / Patil-SR (ch) 38 of 43 FA 27-2014.doc Pushpa, which led to issuance of notice by Tahsildar on 15 th February, 1999. The slum dwellers located on the said land moved the High Court in Writ Petition No 1930 of 1999. The High Court admitted the Petition and passed an interim order staying the notice of Tahsildar and all parties were directed to maintain status quo. The order of status quo was passed at the instance of the slum dwellers and has to be understood in the context in which it was passed and in its true letter and spirit. The order of status quo was meant to protect the slum dwellers from forcible eviction under the notice dated 15 th February, 1999. The status quo qua the property cannot be construed as total prohibition even of the slum dwellers rehabilitation, at the slum dwellers own instance. The subject matter of the Petition was not the proposed slum rehabilitation scheme but the challenge was to the Tahsildar's notice dated 15 th February, 1999. The order of status quo was therefore immaterial for consideration while implementing the slum rehabilitation scheme.
62. It is sought to be contended by Mr. Cama that the status quo order was in respect of Survey No.70(part) and the slum scheme is being implemented on Survey No.112(part) and would rely on the cross examination of maintenance surveyor to demonstrate that there is no connection between the two survey number. There is no such defence taken in the written statement and without any pleadings or sa_mandawgad / Patil-SR (ch) 39 of 43 FA 27-2014.doc framing of issue or evidence on this issue, the same cannot be raised for the first time before the Appellate Court.
63. The slum rehabilitation scheme is statutorily implemented by the Authorities in accordance with the Slum Act, which is sought to be questioned in the Civil Court on ground of fraud. No provision has been demonstrated to show that for implementing the statutory slum rehabilitation scheme, the consent of the owner or land holder is required. The requirement is that the proposal for the scheme should be backed with the consent of 70% slum dwellers.
64. The issues which were framed by the Trial Court was whether the Defendant obtained order from Defendant No.1 by practicing fraud as alleged and whether Defendant No.1 has transgressed their power while sanctioning Annexure II and Letter of Intent in favour of Defendant No.2. The finding of the Trial Court is that the recital in the conveyance deed that the lease has come to an end amounts to act with malafide intention. It held that by surpassing the lease hold rights of the Plaintiff, the authorities and Defendant No.2 in collusion cannot be entitled for implementing the slum rehabilitation scheme. It held that SRA without competency refused representation of Pushpa. The finding is that the scheme is illegal and void as the Plain- tiff's rights have been surpassed while sanctioning the slum rehabilita- tion scheme. Pertinently, there is no finding of fraud in implementa-
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tion of slum rehabilitation scheme which was necessary for Civil Court to exercise jurisdiction.
65. Fraud is an act of deliberate deception with the design of secur- ing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is cheating intended to get an ad- vantage. (See S.P. Changalvaraya Naidu vs Jagannath17. There is no evidence of active concealment of Plaintiffs alleged lease hold rights in the property by the Defendant No.2 while submitting the proposal for implementing slum scheme. The existence of the Plaintiff's lease hold rights in the suit property does not ipso facto lead to a conclusion of fraud for not obtaining the Plaintiff's consent, when the statutory provisions does not mandate any such requirement.
66. The Trial Court has not considered the issue of maintainability which was raised in view of Section 42 of Slum Act by reason of the or- der dated 26th September, 2011 passed on Section 9A application, which was stayed by the High Court. The bar was not an absolute bar and at the inception of suit, in view of the pleadings of fraud, the suit could not have been terminated at the threshold by declining jurisdic- tion. Upon adjudication, if the pleadings on fraud are established, the bar under Section 42 would not apply, however, if fraud is not proved, the Civil Court will not have jurisdiction. The rejection of preliminary 17 1994 1 SCC 1.
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issue of jurisdiction did not render the issue of jurisdiction nugatory and was required to be decided in the context of proof of fraud. In the facts of present case, as there is no fraud demonstrated, the Civil Court did not have the jurisdiction to entertain the challenge to the Letter of Intent.
67. In light of the discussion above, I find that it was necessary for the Plaintiff to seek specific relief of declaration of tenancy title to the suit property under general law of inheritance, without which, the prayer Clause (c) could not have been considered by the Trial Court. The absence of recognition of Pushpa's leasehold rights in the suit property in the conveyance deed executed between M/s. Rado Con- struction Company and Defendant No.2 or the slum scheme being im- plemented despite the status quo order does not constitute fraud. There is no evidence of any collusion or connivance between the De- fendant No.1 SRA and the Defendant No.2 or that SRA has acted malafide in violation of the statutory provisions in issuance of Letter of Intent and therefore bar under Section 42 of Slum Act ousted the Civil Court's jurisdiction. The right in land is dispute inter se dispute between the owner and lessee and on the said ground the slum scheme cannot be questioned in the Civil Court. The statutory authori- ties cannot be injuncted from performing its duty and the statutory sa_mandawgad / Patil-SR (ch) 42 of 43 FA 27-2014.doc right of the slum dwellers cannot be held to ransom in the inter se dis- pute between the owner and the lessee.
68. Resultantly, the First Appeal is allowed. L.C Suit No 1907 of 2008 stands dismissed.
69. In view of the disposal of First Appeal, nothing survives for consideration in the pending civil/interim applications and the same stand disposed of.
[Sharmila U. Deshmukh, J.]
70. At this stage, learned Counsel appearing for the Respondent seeks extension of status quo order which was operating during the trial Court proceedings to be continued for a period of four weeks. The said request is opposed by learned Counsel appearing for the Appellant. As the status quo order was operating during the trial Court proceedings, the same is continued for further period of four weeks.
[Sharmila U. Deshmukh, J.]
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Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 07/05/2025 18:57:17