Bombay High Court
Ao1271.11 Group.Sxw vs Ignatius Pereria Of Bombay on 12 December, 2011
Bench: R. M. Borde
1 ao1271.11 group.sxw
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CIVIL APPELLATE JURISDICTION.
Appeal from Order No. 1271 of 2011
WITH
Civil Application No. 1671/2011 IN AO No. 1271/2011
Mr. Peter Cajetan Travasso of Bombay Indian
Christian inhabitant,
r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi,
Sitladevi Temple Road,
Mahim, Mumbai 400 016.
2. Mrs. Jovita Sequira nee
Jovita Max Travasso of Bombay
Flat No. 8, House No. 6/6A,
Travasso Mansion (address as above)
3. Mr. Stanislaus Max Travasso of
Bombay.
r/at: 8, Travasso Bungalow(address as above)
4. Mr. Terence Max Travasso of Bombay
r/at: 8, Travasso Bungalow(address as above)
5. Mrs. Shirley Cardoz nee Shirley Travasso of
Bombay
Flat No. 5, House No. 6/6A,
Travasso Mansion (address as above)
6. Mrs. June Alvares nee
Ms. June Travasso of Bombay
r/at: 19, Hind Mansion, Sitladevi
Temple Road, Mahim, Mumbai. ....Appellants
v/s.
Ignatius Pereria of Bombay
r/at: Room No. 6, Building No. 14-A,
Ground floor, 393, New Girgaonkar
Wadi, Sitladevi Temple, Mahim,
Mumbai 400 016.
::: Downloaded on - 09/06/2013 18:00:01 :::
2 ao1271.11 group.sxw
2. Municipal Corporation of Greater
Mumbai,
G-North Ward, Dadar,
Mumbai 400 028.
3. The Executive Engineer,
G-North, MBR&R Board,
Sonawale Building, Shindewadi,
S.A. Palav Marg, Dadar (E),
Mumbai 400 014. ....Respondents
ALONGWITH
Appeal from Order No. 1349 of 2011
ig WITH
Civil Application No. 1759/2011 IN AO No. 1349/2011
Mr. Peter Cajetan Travasso of Bombay Indian
Christian inhabitant,
r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi,
Sitladevi Temple Road,
Mahim, Mumbai 400 016.
2. Mrs. Jovita Sequira nee
Jovita Max Travasso of Bombay
Flat No. 8, House No. 6/6A,
Travasso Mansion (address as above)
3. Mr. Stanislaus Max Travasso of
Bombay.
r/at: 8, Travasso Bungalow(address as above)
4. Mr. Terence Max Travasso of Bombay
r/at: 8, Travasso Bungalow(address as above)
5. Mrs. Shirley Cardoz nee Shirley Travasso of
Bombay
Flat No. 5, House No. 6/6A,
Travasso Mansion (address as above)
6. Mrs. June Alvares nee
::: Downloaded on - 09/06/2013 18:00:01 :::
3 ao1271.11 group.sxw
Ms. June Travasso of Bombay
r/at: 19, Hind Mansion, Sitladevi
Temple Road, Mahim, Mumbai. ....Appellants
v/s.
Rashida M. Hasan of Bombay
r/at: Room No. 1A, Building No. 14-A,
Ground floor, 393, New Girgaonkar
Wadi, Sitladevi Temple, Mahim,
Mumbai 400 016.
2. Municipal Corporation of Greater
Mumbai,
G-North Ward, Dadar,
Mumbai 400 028.
3. The Executive Engineer,
G-North, MBR&R Board,
Sonawale Building, Shindewadi,
S.A. Palav Marg, Dadar (E),
Mumbai 400 014. ....Respondents
ALONGWITH
Appeal from Order No. 1350 of 2011
WITH
Civil Application No. 1760/2011 IN AO No. 1350/2011
Mr. Peter Cajetan Travasso of Bombay Indian
Christian inhabitant,
r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi,
Sitladevi Temple Road,
Mahim, Mumbai 400 016.
2. Mrs. Jovita Sequira nee
Jovita Max Travasso of Bombay
Flat No. 8, House No. 6/6A,
Travasso Mansion (address as above)
3. Mr. Stanislaus Max Travasso of
::: Downloaded on - 09/06/2013 18:00:01 :::
4 ao1271.11 group.sxw
Bombay.
r/at: 8, Travasso Bungalow(address as above)
4. Mr. Terence Max Travasso of Bombay
r/at: 8, Travasso Bungalow(address as above)
5. Mrs. Shirley Cardoz nee Shirley Travasso of
Bombay
Flat No. 5, House No. 6/6A,
Travasso Mansion (address as above)
6. Mrs. June Alvares nee
Ms. June Travasso of Bombay
r/at: 19, Hind Mansion, Sitladevi
Temple Road, Mahim, Mumbai. ....Appellants
v/s.
Ronnie Noronha of Bombay
r/at: Room Nos. 5 & 5A,Building No. 14-A,
Ground floor, 393, New Girgaonkar
Wadi, Sitladevi Temple, Mahim,
Mumbai 400 016.
2. Municipal Corporation of Greater
Mumbai,
G-North Ward, Dadar,
Mumbai 400 028.
3. The Executive Engineer,
G-North, MBR&R Board,
Sonawale Building, Shindewadi,
S.A. Palav Marg, Dadar (E),
Mumbai 400 014. ....Respondents
ALONGWITH
Appeal from Order No. 1351 of 2011
WITH
Civil Application No. 1761/2011 IN AO No. 1351/2011
Mr. Peter Cajetan Travasso of Bombay Indian
::: Downloaded on - 09/06/2013 18:00:02 :::
5 ao1271.11 group.sxw
Christian inhabitant,
r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi,
Sitladevi Temple Road,
Mahim, Mumbai 400 016.
2. Mrs. Jovita Sequira nee
Jovita Max Travasso of Bombay
Flat No. 8, House No. 6/6A,
Travasso Mansion (address as above)
3. Mr. Stanislaus Max Travasso of
Bombay.
r/at: 8, Travasso Bungalow(address as above)
4. Mr. Terence Max Travasso of Bombay
r/at: 8, Travasso Bungalow(address as above)
5. Mrs. Shirley Cardoz nee Shirley Travasso of
Bombay
Flat No. 5, House No. 6/6A,
Travasso Mansion (address as above)
6. Mrs. June Alvares nee
Ms. June Travasso of Bombay
r/at: 19, Hind Mansion, Sitladevi
Temple Road, Mahim, Mumbai. ....Appellants
v/s.
Annie Fernandes of Bombay
r/at: Room No. 2, Building No. 14-A,
Ground floor, 393, New Girgaonkar
Wadi, Sitladevi Temple, Mahim,
Mumbai 400 016.
2. Municipal Corporation of Greater
Mumbai,
G-North Ward, Dadar,
Mumbai 400 028.
3. The Executive Engineer,
G-North, MBR&R Board,
Sonawale Building, Shindewadi,
::: Downloaded on - 09/06/2013 18:00:02 :::
6 ao1271.11 group.sxw
S.A. Palav Marg, Dadar (E),
Mumbai 400 014. ....Respondents
ALONGWITH
Appeal from Order No. 1352 of 2011
WITH
Civil Application No. 1762/2011 IN AO No. 1352/2011
Mr. Peter Cajetan Travasso of Bombay Indian
Christian inhabitant,
r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi,
Sitladevi Temple Road,
Mahim, Mumbai 400 016.
2. Mrs. Jovita Sequira nee
Jovita Max Travasso of Bombay
Flat No. 8, House No. 6/6A,
Travasso Mansion (address as above)
3. Mr. Stanislaus Max Travasso of
Bombay.
r/at: 8, Travasso Bungalow(address as above)
4. Mr. Terence Max Travasso of Bombay
r/at: 8, Travasso Bungalow(address as above)
5. Mrs. Shirley Cardoz nee Shirley Travasso of
Bombay
Flat No. 5, House No. 6/6A,
Travasso Mansion (address as above)
6. Mrs. June Alvares nee
Ms. June Travasso of Bombay
r/at: 19, Hind Mansion, Sitladevi
Temple Road, Mahim, Mumbai. ....Appellants
v/s.
Secrement Fernandes of Bombay
r/at: Room No. 3A, Building No. 14-A,
Ground floor, 393, New Girgaonkar
Wadi, Sitladevi Temple, Mahim,
::: Downloaded on - 09/06/2013 18:00:02 :::
7 ao1271.11 group.sxw
Mumbai 400 016.
2. Municipal Corporation of Greater
Mumbai,
G-North Ward, Dadar,
Mumbai 400 028.
3. The Executive Engineer,
G-North, MBR&R Board,
Sonawale Building, Shindewadi,
S.A. Palav Marg, Dadar (E),
Mumbai 400 014. ....Respondents
ALONGWITH
Appeal from Order No. 1353 of 2011
ig WITH
Civil Application No. 1763/2011 IN AO No. 1353/2011
Mr. Peter Cajetan Travasso of Bombay Indian
Christian inhabitant,
r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi,
Sitladevi Temple Road,
Mahim, Mumbai 400 016.
2. Mrs. Jovita Sequira nee
Jovita Max Travasso of Bombay
Flat No. 8, House No. 6/6A,
Travasso Mansion (address as above)
3. Mr. Stanislaus Max Travasso of
Bombay.
r/at: 8, Travasso Bungalow(address as above)
4. Mr. Terence Max Travasso of Bombay
r/at: 8, Travasso Bungalow(address as above)
5. Mrs. Shirley Cardoz nee Shirley Travasso of
Bombay
Flat No. 5, House No. 6/6A,
Travasso Mansion (address as above)
6. Mrs. June Alvares nee
::: Downloaded on - 09/06/2013 18:00:02 :::
8 ao1271.11 group.sxw
Ms. June Travasso of Bombay
r/at: 19, Hind Mansion, Sitladevi
Temple Road, Mahim, Mumbai. ....Appellants
v/s.
Paul Gracias of Bombay
r/at: Room No. 4, Building No. 14-A,
Ground floor, 393, New Girgaonkar
Wadi, Sitladevi Temple, Mahim,
Mumbai 400 016.
2. Municipal Corporation of Greater
Mumbai,
G-North Ward, Dadar,
Mumbai 400 028.
3. The Executive Engineer,
G-North, MBR&R Board,
Sonawale Building, Shindewadi,
S.A. Palav Marg, Dadar (E),
Mumbai 400 014. ....Respondents
ALONGWITH
Appeal from Order No. 1354 of 2011
WITH
Civil Application No. 1764/2011 IN AO No. 1354/2011
Mr. Peter Cajetan Travasso of Bombay Indian
Christian inhabitant,
r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi,
Sitladevi Temple Road,
Mahim, Mumbai 400 016.
2. Mrs. Jovita Sequira nee
Jovita Max Travasso of Bombay
Flat No. 8, House No. 6/6A,
Travasso Mansion (address as above)
3. Mr. Stanislaus Max Travasso of
Bombay.
::: Downloaded on - 09/06/2013 18:00:02 :::
9 ao1271.11 group.sxw
r/at: 8, Travasso Bungalow(address as above)
4. Mr. Terence Max Travasso of Bombay
r/at: 8, Travasso Bungalow(address as above)
5. Mrs. Shirley Cardoz nee Shirley Travasso of
Bombay
Flat No. 5, House No. 6/6A,
Travasso Mansion (address as above)
6. Mrs. June Alvares nee
Ms. June Travasso of Bombay
r/at: 19, Hind Mansion, Sitladevi
Temple Road, Mahim, Mumbai. ....Appellants
v/s.
Anthony D'Souza of Bombay
r/at: Room No. 3, Building No. 14-A,
Ground floor, 393, New Girgaonkar
Wadi, Sitladevi Temple, Mahim,
Mumbai 400 016.
2. Municipal Corporation of Greater
Mumbai,
G-North Ward, Dadar,
Mumbai 400 028.
3. The Executive Engineer,
G-North, MBR&R Board,
Sonawale Building, Shindewadi,
S.A. Palav Marg, Dadar (E),
Mumbai 400 014. ....Respondents
ALONGWITH
Appeal from Order No. 1355 of 2011
WITH
Civil Application No. 1765/2011 IN AO No. 1355/2011
Mr. Peter Cajetan Travasso of Bombay Indian
Christian inhabitant,
r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi,
Sitladevi Temple Road,
::: Downloaded on - 09/06/2013 18:00:02 :::
10 ao1271.11 group.sxw
Mahim, Mumbai 400 016.
2. Mrs. Jovita Sequira nee
Jovita Max Travasso of Bombay
Flat No. 8, House No. 6/6A,
Travasso Mansion (address as above)
3. Mr. Stanislaus Max Travasso of
Bombay.
r/at: 8, Travasso Bungalow(address as above)
4. Mr. Terence Max Travasso of Bombay
r/at: 8, Travasso Bungalow(address as above)
5. Mrs. Shirley Cardoz nee Shirley Travasso of
Bombay
Flat No. 5, House No. 6/6A,
Travasso Mansion (address as above)
6. Mrs. June Alvares nee
Ms. June Travasso of Bombay
r/at: 19, Hind Mansion, Sitladevi
Temple Road, Mahim, Mumbai. ....Appellants
v/s.
Vijay Gaikwad of Bombay
r/at: Room No. 2A, Building No. 14-A,
Ground floor, 393, New Girgaonkar
Wadi, Sitladevi Temple, Mahim,
Mumbai 400 016.
2. Municipal Corporation of Greater
Mumbai,
G-North Ward, Dadar,
Mumbai 400 028.
3. The Executive Engineer,
G-North, MBR&R Board,
Sonawale Building, Shindewadi,
S.A. Palav Marg, Dadar (E),
Mumbai 400 014. ....Respondents
::: Downloaded on - 09/06/2013 18:00:02 :::
11 ao1271.11 group.sxw
ALONGWITH
Appeal from Order No. 1356 of 2011
WITH
Civil Application No. 1766/2011 IN AO No. 1356/2011
Mr. Peter Cajetan Travasso of Bombay Indian
Christian inhabitant,
r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi,
Sitladevi Temple Road,
Mahim, Mumbai 400 016.
2. Mrs. Jovita Sequira nee
Jovita Max Travasso of Bombay
Flat No. 8, House No. 6/6A,
Travasso Mansion (address as above)
3. Mr. Stanislaus Max Travasso of
Bombay.
r/at: 8, Travasso Bungalow(address as above)
4. Mr. Terence Max Travasso of Bombay
r/at: 8, Travasso Bungalow(address as above)
5. Mrs. Shirley Cardoz nee Shirley Travasso of
Bombay
Flat No. 5, House No. 6/6A,
Travasso Mansion (address as above)
6. Mrs. June Alvares nee
Ms. June Travasso of Bombay
r/at: 19, Hind Mansion, Sitladevi
Temple Road, Mahim, Mumbai. ....Appellants
v/s.
Anthony D'Souza of Bombay
r/at: Room No.1, Building No. 14-A,
Ground floor, 393, New Girgaonkar
Wadi, Sitladevi Temple, Mahim,
Mumbai 400 016.
2. Municipal Corporation of Greater
::: Downloaded on - 09/06/2013 18:00:02 :::
12 ao1271.11 group.sxw
Mumbai,
G-North Ward, Dadar,
Mumbai 400 028.
3. The Executive Engineer,
G-North, MBR&R Board,
Sonawale Building, Shindewadi,
S.A. Palav Marg, Dadar (E),
Mumbai 400 014. ....Respondents
ALONGWITH
Appeal from Order No. 1357 of 2011
WITH
Civil Application No. 1767/2011 IN AO No. 1357/2011
Mr. Peter Cajetan Travasso of Bombay Indian
Christian inhabitant,
r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi,
Sitladevi Temple Road,
Mahim, Mumbai 400 016.
2. Mrs. Jovita Sequira nee
Jovita Max Travasso of Bombay
Flat No. 8, House No. 6/6A,
Travasso Mansion (address as above)
3. Mr. Stanislaus Max Travasso of
Bombay.
r/at: 8, Travasso Bungalow(address as above)
4. Mr. Terence Max Travasso of Bombay
r/at: 8, Travasso Bungalow(address as above)
5. Mrs. Shirley Cardoz nee Shirley Travasso of
Bombay
Flat No. 5, House No. 6/6A,
Travasso Mansion (address as above)
6. Mrs. June Alvares nee
Ms. June Travasso of Bombay
r/at: 19, Hind Mansion, Sitladevi
::: Downloaded on - 09/06/2013 18:00:02 :::
13 ao1271.11 group.sxw
Temple Road, Mahim, Mumbai. ....Appellants
v/s.
Rukmani P. Tambe of Bombay
r/at: Room No. 6A, Building No. 14-A,
Ground floor, 393, New Girgaonkar
Wadi, Sitladevi Temple, Mahim,
Mumbai 400 016.
2. Municipal Corporation of Greater
Mumbai,
G-North Ward, Dadar,
Mumbai 400 028.
3. The Executive Engineer,
G-North, MBR&R Board,
Sonawale Building, Shindewadi,
S.A. Palav Marg, Dadar (E),
Mumbai 400 014. ....Respondents
ALONGWITH
Appeal from Order No. 1358 of 2011
WITH
Civil Application No. 1768/2011 IN AO No. 1358/2011
Mr. Peter Cajetan Travasso of Bombay Indian
Christian iinhabitant,
r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi,
Sitladevi Temple Road,
Mahim, Mumbai 400 016. ....Appellant
v/s.
Octaviano A. Fernandes of Bombay
r/at: Room No. 7, Building No. 14-A,
Ground floor, 393, New Girgaonkar
Wadi, Sitladevi Temple, Mahim,
Mumbai 400 016.
2. Municipal Corporation of Greater
Mumbai,
::: Downloaded on - 09/06/2013 18:00:02 :::
14 ao1271.11 group.sxw
G-North Ward, Dadar,
Mumbai 400 028.
3. The Executive Engineer,
G-North, MBR&R Board,
Sonawale Building, Shindewadi,
S.A. Palav Marg, Dadar (E),
Mumbai 400 014. ....Respondents
Mr. P.S.Dani i/b. Ms. Yasmin Bhansali & co. for the appellants in all matters.
Mr. P.M. Pradhan i/b. Ajit Kenjale for respondent no. 1 in AO No. 1349/2011,
1350/2011, 1351/2011, 1352/2001, 1353/2011, 1354/2011 & 1355/2011.
Ms. K.K. Soran for respondent no.2 in all the matters.
Mr. V.R. Walawalkar i/b. V.S. Kapse for respondent no.1 in AO 1356/11,
1357/11 and 1358/11.
Ms. Minal M. Kule i/b. Shri P.G. Lad for resp. no.3 in AO 1354/11, 1355/11,
1356/11 and 1357/11.
CORAM: R.M. BORDE, J.
12th December, 2011
JUDGMENT:
Heard Counsel for the parties. Admit.
With the consent of the parties, appeals are taken up for final disposal.
2. The appellants-original owners of the property are taking exception to the
order passed by the trial Court on 9th November, 2011 thereby directing return
of plaint for presentation to proper forum. Since the order passed by the trial
Court is similar in all the matters, these Appeal from Orders are being disposed
of by common judgment.
3. The appellants-original plaintiffs presented suit claiming possession of
the suit property for mandatory and permanent injunction. Plaintiffs claim to
15 ao1271.11 group.sxw
be owners of the suit property and suit structure consisting of 14 looms in
building no. 14A which according to plaintiff was completely gutted down due
to fire on 12th December, 2010. The total area of the suit structure is 1400 sq.
feet and each of the defendant possesses an area to the extent of 100 sq. feet. It
is the contention of the plaintiff that as a result of fire defendants-tenants are
rendered homeless. The plaintiffs issued a letter to MHADA and informed that
they are willing to bear the expenses of reconstruction of the structure and
further requested the defendants 2 and 3 not to issue no objection certificate to
defendant no.1 for reconstruction of the structure. According to plaintiffs, the
defendant no.1 in each of the matter carried out construction activities which is
illegal and not contemplated by provisions of MHADA Act.
ig According to
plaintiffs as a result of destruction of structure the tenancy of defendant no.1
came to an end and they do not have any right in respect of the suit land. The
defendants also do not have entitlement to unauthorised construction over the
suit premises. The plaintiff as such claims a decree of recovery of possession
of the land.
4. The defendants appeared and denied the adverse contentions. The
defendants raised one preliminary objection as regards jurisdiction of the Civil
Court in view of Section 177 of MHADA Act, 1976 so also in view of
provisions of Section 33 of the Maharashtra Rents Control Act. The case of
the defendants appears to be that the whole structure is not gutted down and
they are entitled to carry out the repairs and reconstruction with the permission
of MHADA. It is further contended by the defendants that the affected persons
applied to MHADA under Section 101 and 102 of MHADA Act for repair and
reconstruction of the structure which was destroyed due to fire and MHADA
has issued no objection certificate on 22nd June, 2011 in respect of the repairs.
According to defendants the suit presented by the plaintiff has become
infructuous and is liable to be dismissed.
16 ao1271.11 group.sxw
5. After presentation of the suit initially ad-interim order was passed by the
trial Court on an application tendered by the plaintiff which was subject matter
of challenge in different appeals before this Court. This Court had directed the
trial Court to decide the preliminary objection raised by the defendants in
respect of jurisdiction of the Court under Section 9A of the Code of Civil
Procedure and the ad-interim order passed by the trial Court was required to be
construed as an interim order passed under Section 9A (ii) of the Code of Civil
Procedure. The trial Court accordingly considered the preliminary objections
and recorded finding to the effect that Civil Court has no jurisdiction to
entertain the suit in view of provisions of Section 17 of MHADA Act and
directed return of the plaint. It would be appropriate to reproduce the prayers
made by the plaintiffs. Prayers (a)(b)& (c) contained in Para 18 of the plaint
read thus:
"(a) for a decree of this Hon'ble Court against the
Defendant No.1 to handover the possession of the land
admeasuring 100 sq.ft under the unauthorised structure
admeasuring 100 sq. ft, being Room No. 2A on the ground
floor, Building No. 14 A, 393, New Girgaonkar Wadi,
Sitladevi Temple Road, Mahim, Mumbai 400 016 to the
plaintiffs;
(b) that the Defendant No.1, be directed by an order of
this Hon'ble Court to demolish and/or forthwith remove
the unauthorised structure admeasuring 100 sq. ft being
Room No. 2A, Ground Floor, New Girgaonkar Wadi,
Sitladevi Temple Road, Mahim, Mumbai 400 016.
(c) that the Defendant Nos. 2 and 3, be restrained by an
Order and permanent injunction of this Hon'ble Court
from issuing any NOC to Defendant No.1 for
reconstruction of Room No. 2A, Ground Floor on
Building No. 14A, New Girgaonkar Wadi, Sitladevi
Temple Road, Mahim, Mumbai - 400 016."
17 ao1271.11 group.sxw
6. The first prayer is in respect of recovery of possession of land
admeasuring 100 sq. feet under the unauthorised structure and the second
prayer relates to demolition and removal of unauthorised structure for purpose
of handing over of possession. The preliminary issues framed by the Court are
thus:
(i) Whether the suit is barred under Section 171 of MHADA Act?
(ii) Whether the present suit is barred by virtue of Section 33 of the
Maharashtra Rent Control Act?
7. It is the contention of the appellant that the trial Court has recorded the
findings on issue no.2 in favour of the plaintiff and as such some of prayers
contained in the plaint are liable to be considered. It was, therefore, not
appropriate for the trial Court to direct return of plaint. The plaintiff could
have been put to option and could have been asked to make choice as regards
the prayers contained in the plaint. It is also contended that even otherwise the
order passed by the trial Court directing return of plaint is unsustainable.
8. It is the specific case of the plaintiff that the whole building is destructed
due to fire and is not capable of being put to user for occupation of the tenants.
It is contended that since the whole building is destructed or demolished, the
tenants are not liable to be put in possession of the structures and in absence of
structures, the tenants do not have entitlement to the land. It is thus the
contention of the plaintiff that the plaintiff is entitled to recovery of possession
of land below the structure, the structure having been demolished due to fire.
Reliance is placed on the judgment in the matter of Vannattankandy Ibrayi v/s.
Kunhabdulla Hajee (2001) 1 SCC 564. The plaintiff argued that the view
taken by this Court in Hind Rubber Industries matter that in spite of destruction
18 ao1271.11 group.sxw
of the structure, the plaintiffs do have interest in the land below the structure,
their tenancy continues, has been specifically over ruled by the Apex Court.
My attention is invited to Paragraph 14 and 23 of the Judgment which reads
thus:-
"14. Learned counsel appearing for the appellant pressed into
service the aforesaid two decisions, one in Hind Rubber
Industries Pvt Ltd. and second in V. Kalpakam Amma and
contended that on the destruction of the building the tenancy
right of the tenant is not extinguished. It is also stated that a
special leave petition filed against the decision in Hind
Rubber Industries (P) Ltd. was dismissed by this Court and,
therefore, the said decision has the seal of approval by this
Court. In the case of Hind Rubber Industries(P) Ltd. the
plaintiff was the owner of the building. The said building was
let out to the defendant and the building so let out caught fire
and the building occupied by the defendant was gutted and
destroyed. The plaintiff brought a suit in the City Civil Court,
Bombay for mandatory injunction restraining the defendant from
carrying out any work or construction on the disputed land or
entering upon the said laid. The defendant raised an objection
that the suit filed by the plaintiff in the City Civil Court was
not maintainable. A preliminary issue was struck as to whether
the Court had jurisdiction to entertain the suit. The trial Court
held that it had jurisdiction to entertain and try the suit. On a
Civil Revision petition filed by the defendant, the Bombay High
Court held that since on the destruction of the property the
tenancy is not extinguished and relationship of landlord and
tenant continued to exist, therefore the City Civil Court had
no jurisdiction to entertain and try the suit. While holding so
the High Court relied upon Section 108 (B) (e) of the Act which
runs as under:
108(B)(e) If by fire, tempest or flood, or violence of any
army or of a mob, or other irresistible force, any material part
of the property be wholly destroyed or rendered substantially
and permanently unfit for the purposes for which it was let,
the lease shall, at the option of the lessee, be void;
Provided that, if the injury be occasioned by the
wrongful act or default of the lessee, he shall not be entitled
to avail himself of the benefit of this provision;
19 ao1271.11 group.sxw
The aforesaid Section provides that in case of
destruction of the property by fire, tempest or flood, or violence
of any army, the lease may be rendered void at the option of
the lessee provided that such injury to the leased property has
not been occasioned by the wrongful act or default of the
lessee. According to the High Court the rights of the tenant in
the leased property subsisted even if the leased premises has
been destroyed by fire, unless the tenant exercises his option
that the tenancy is rendered void. The question therefore arises
whether on destruction of tenanted shop governed by the State
Rent Act, the tenant can assert his possession on the vacant land
on the footing that the tenancy continued to exist under Section
108 (B)(e) of the Act. In other words whether in the aforesaid
situation the provisions of Section 108 (B) (e) have any
application.
23.
In V. Kalpakam Amma the Kerala High Court relying
upon the definition of the building in the State Rent Act held that
there cannot be a building without a site and once a structure is
put up in the land the site becomes part of the structure and
thereafter the site becomes part of the building and on that basis
the High Court held that once the premises covered by the State
Rent Act is raised to the ground tenancy continues to survive in
respect of the vacant land. In our view this is not the correct
interpretation of Section 2(1) of the State Rent Act. Section
2(1) uses the words part of a building or hut. The words part
of the building do not refer to the land on which the building is
constructed but it refers to any other super structure which is part
of that main building e.g. in addition to the main building if
there is any other superstructure in the said premises i.e. motor
garage or servant quarter and the same would be part of the
building and not the land on which the building has been so
constructed. So far the appurtenant land which is beneficial for
the purpose of use of the building is also the part of the
building.
Thus according to the definition of the Building in the State
Rent Act the building would include any other additional
superstructure in the same premises and appurtenant land.
We are, therefore, of the view that the interpretation put by
the Kerala High Court of Section 2(1) for holding that the
words part of a building means the land on which the building
has been constructed is not correct. The provisions of the State
Rent Act clearly show that the State Rent Act is self contained
Act and the rights and liabilities of landlord and tenant are
determined by the provisions contained therein and not by the
20 ao1271.11 group.sxw
provisions of the Transfer of Property Act or any other law.
The rights of a landlord under the general law are
substantially curtailed by the provisions of the State Rent Act as
the Act is designed to confer benefit to tenants by providing
accommodation and to protect them from unreasonable
eviction. In the present case what we find is that the subject
matter of tenancy was the shop room which was completely
destroyed on account of accidental fire and it was not possible
for the tenant to use the shop for which he took the shop on
rent. After the shop was destroyed the tenant, without
consent or permission of the landlord, cannot put up a new
construction on the site where the old structure stood. If it is
held that despite the destruction of the shop, tenancy over the
vacant land continued unless the tenant exercises his option
under Section 108 (B) (e) of the Act the situation that emerges is
that the tenant would continue as a tenant of a non-existing
building and liable to pay rent to the landlord when he is
unable to use the shop. The tenancy of the shop, which was let
out, was a super structure and what is protected by the State
Rent Act is the occupation of the tenant in the superstructure. If
the argument of appellants counsel is accepted then it would
mean that although the tenant on the destruction of the shop
cannot put up a new structure on the old site still he would
continue to squat on the vacant land. Under such situation it is
difficult to hold that the tenancy is not extinguished on the
total destruction of the premises governed by the State Rent
Act. Under English Law in a contractual tenancy in respect
of building and land the liability to pay the rent by the tenant
to the landlord continues even on the destruction of the
building whereas there is no liability of the tenant to pay rent
to the landlord on the destruction of the premises governed by
the State Rent Act. Therefore, the view taken by the Bombay
High Court in Hind Rubber Industries Pvt. Ltd. does not lay
down the correct view of law. This Court a number of times
has held that any special leave petition dismissed by this
Court without giving a reason has no binding force on its
subsequent decisions. Therefore, the two aforesaid cases
relied on by counsel for the appellant are of no assistance to the
argument advanced by him."
9. Placing reliance on the Judgment referred to above it is contended that in
view of destruction of the structure the plaintiffs who were entitled to claim
recovery of land and bar contained in the provisions of Rent Control Act would
not be an impediment in prosecuting the suit. The appellant has also invited
21 ao1271.11 group.sxw
my attention to the finding recorded by the trial Court to the effect that suit
structure has been completely gutted down and as such the issue as regards bar
of Section 33 of Maharashtra Rent Control Act is not attracted in the matter.
The contentions raised by the plaintiff that whole structure is gutted down and
even the skeleton structure also does not remain in existence is specifically
controverted by the respondent-defendants. It is the contention of the
defendants that structural repairs are possible and the very fact that MHADA
has issued no objection certificate for carrying out structural repairs itself is
indicative of the fact that the whole building is not gutted down but the
structure is capable of being repaired. The argument advanced by the
respondents-defendants appears to be logical.
ig The trial Court, however, has
recorded a finding that the whole structure is gutted down in the absence of
there being any evidence placed on record by the parties. In order to attract the
bar of Section 33 of the Maharashtra Rent Control Act, the Court has to record
findings on the issue as to whether the whole structure is gutted down and as
such is not capable of being repaired, is a jurisdictional fact in respect of which
a specific finding needs to be recorded by the trial Court. The Division Bench
in the matter of Satpuda Tapi Parisar Sahakari Karkhana Ltd. v. Jagruti
Industries, 2008 (5) Bom.C.R. 284, has observed that the jurisdictional fact
for consideration of the issue is required to be decided. It would be open for
the Court to receive evidence for deciding jurisdictional fact even for deciding
the preliminary issue. In para-9 sub-para- 12 it is observed thus:
"12. We would, at this stage, refer to the precise principle laid
down by this Court in the case of (Fazlehussein v. Yusufally) 10,
AIR 1995 Bom. 55, wherein the Court has, after observing that
the averments made in the plaint would be sufficient to decide
the question of jurisdiction, held as under:
"In considering the preliminary issue, the Court must look
into the averments in the plaint and consider any objections
which the defendant may choose to raise against the
22 ao1271.11 group.sxw
maintainability of the action on those averments. The
question of jurisdiction which is raised by way of a demurrer
has always to be decided on the allegations made in the plaint
and not on the contentions that the defendant may raise. It is
true that if the jurisdiction of the Court depends upon the
proof of a fact and the question as to the existence or
otherwise of that fact is canvassed, the parties may lead
evidence in support of their respective cases before the
preliminary issue as to jurisdiction of the Court is decided."
10. In the instant matter the question whether the whole structure is gutted
down and is demolished and is not capable of being put to use of occupation of
the tenants, is a jurisdictional fact. In order to consider bar of Section 33 of the
Maharashtra Rent Control Act, the trial Court without recording any evidence
in respect of this jurisdictional fact proceeded to record finding that the
structure is completely destroyed. Such a finding recorded by the trial Court
without there being any evidence on record placed before the Court is liable to
be held erroneous. It would be, therefore, necessary for the trial Court to first
of all record finding on the jurisdictional fact about the existence of structure
and then and thereafter only the trial Court can answer the issue as regards bar
of Section 33 of the Maharashtra Rent Control Act. The trial Court thus needs
to reconsider the finding on issue no.2 as to whether suit is barred by virtue of
Section 33 of the Maharashtra Rent Control Act. The Counsel appearing for
the plaintiff has vehemently contended that the suit cannot be held to have
been barred under Section 177 of MHADA Act. The finding recorded by the
trial Court in that regard is erroneous. It is not disputed that tenants are paying
cess to the MHADA and as such premises occupied by the tenants is authority
premises within meaning of provisions of Act. The defendants are occupiers of
suit premises also is not controverted. Section 2(36) reads thus:-
(36) "structural repairs" for the purposes of Chapter VIII
means repairs or replacement of decayed, cracked, or out of
23 ao1271.11 group.sxw
plumb structural components of a building or any substantial part
thereof or any part to which the occupiers have common access,
such as,staircases, passages, water closets or privies by new ones
of the like material or materials, or of different material or
materials including change in the mode of construction like
converting load bearing wall type or timber framed structure to
an R. C. C. one, or a combination of both, which repairs or
replacement in the opinion of the Board, if not carried out
expeditiously, may result in the collapse of the building or any
such part thereof; and"structural repairs" includes repairs and
replacement of all items which are required to be repaired or
replaced as a consequence of the repairs or replacement aforesaid
which are carried out or to be carried out, and also repairs and
replacement of the roof (both not replacement of the tiles
only)and of the drain pipes(including house gallies) fixed to the
building, which, if not repaired or replaced simultaneously with
structural repairs would cause further damage to the building.
When such repairs to any building or any part thereof are carried
out by the Board the building shall be deemed to be structurally
repaired under this Act;"
11. In view of provisions of Section 28 of the MHADA Act, it is the duty and
function of the Authority to conduct repairs or conduct the activity of the
construction or reconstruction of the buildings. Thus the Authority established
under the provisions of the act is empowered to either conduct the repairs or get
the same carried out by applying the modes prescribed under the Act. Section
76 of the Act prescribes duties relating to repairs and reconstruction of the
Board. It is the responsibility of the Board to undertake and carry out structural
repairs and further to provide a temporary and alternative accommodation to
the occupants of such building if the repairs thereto are undertaken, or if a
building collapses. It is also responsibility of the Board to move the State
Government to acquire the old and dilapidated buildings which are in the
opinion of the Board beyond repairs and reconstruct or to get reconstructed new
buildings thereon for the purpose of housing as many occupiers.
24 ao1271.11 group.sxw
12. Section 88 of the Act is in respect of structural repairs of the buildings
which are in ruinous condition and likely to deteriorate and fall. If the Board
is of the opinion that the repairs of the building structure need not be
undertaken, the Board may issue a certificate to that effect to the owner.
13. Section 91 of the Act speaks of repairs and reconstruction of the building
which suddenly collapses and becomes uninhabitable. Section 91 reads thus:-
91. Repairs or reconstruction of buildings which suddenly
collapse or become uninhabitable.- (1) Where a building
suddenly collapses or becomes uninhabitable due to fire,
torrential rain or tempest or otherwise and all or any of the
occupiers thereof are dishoused, the Board shall allot temporary
accommodation to such occupiers in any building maintained by
the Authority for such purpose at such places and to such extent
as it deems fit, and the provisions of the last preceding section
shall mutatis mutandis apply as they apply in relation to
occupiers of buildings which are undertaken to be structurally
repaired.
(2) In the case of any such building, if the Board is of the
opinion that the building is capable of being repaired and
rendered fit for habitation at reasonable expense, the Board shall
immediately undertake the necessary repairs and the last
preceding section and other provisions of this Chapter shall
apply mutatis mutandis to such repairs as they apply to
structural repairs.
(3) Where the whole building collapses or is rendered
uninhabitable, or the Board is of the opinion that the building is
not capable of being repaired and rendered fit for habitation at
reasonable expense, the Board may move the State Government
to acquire the property under the provisions of this Chapter and
take necessary further action to construct a new building on the
site to accommodate the dishoused occupiers and to provide
accommodation for other purposes specified in sub-section (2)
of section 92.
(4) The provisions of succeeding section shall apply
25 ao1271.11 group.sxw
mutatis mutandis to the acquisition, reconstruction and
rehabilitation of occupiers of such buildings.
(5) Where the whole building collapses or is rendered
uninhabitable, and is, therefore, not capable of being repaired
and rendered fit for habitation and the property is not acquired
under sub-section (3), then, no plan for erecting any new
building on land on which such building was standing shall be
sanctioned by the [Mumbai Corporation] unless a no objection
certificate from the Board has been produced along with such
plan for erecting such building.
14. It is clear that in view of sub-section (3) of Section 91 when the building
collapses or is rendered uninhabitable, or the Board is of the opinion that
building is not capable of being repaired and rendered fit for habitation at
reasonable expense, the Board is required to move the State Government to
acquire the property. It is contended by the plaintiff that in the instant matter
as the building is in ruinous condition and is not capable of being put to repairs,
the only alternative for the Authority is either to acquire the building or to issue
a certificate in that regard. It is contended that neither the Authority nor Board
has taken steps to acquire building nor have issued a certificate to that effect.
The action of the Board in permitting the occupants to carry out the repairs is
opposed to provisions of law. As has been stated above, firstly it has to be
determined as to whether the building is capable of being put to use after
carrying out repairs either structural or otherwise and the trial Court is required
to record a finding in that regard. The contention of the plaintiff that the
building is not capable of being put to use, cannot be accepted at this stage.
The argument that the Board is not justified in directing repairs of the building
also is not capable of being accepted at this stage. It cannot be controverted
that there are provisions in the Act which empowers the Board to either carry
out repairs or direct carrying out repairs by some Agency or by the occupants
themselves. In the instant matter the Board has permitted the occupants to
26 ao1271.11 group.sxw
carry out the repairs themselves presumably because the premises can be put to
use by the occupants after carrying out repairs. It would be premature to draw
any conclusion as contended by the plaintiff that the building is not capable of
being put to use by the occupants and the authorities are not justified in
permitting the occupiers to conduct repairs.
15. It is contended that trial Court has recorded finding that the trial Court
has no jurisdiction to entertain suit in view of Section 177 of MHADA Act
without recording finding as to whether the issue raised before the Court is one
which the Authority or Tribunal is empowered by or under this Act, to
determine. It is for the trial Court to first of all determine as to whether the
issue brought before the Court is capable of adjudication by the Authority or
Tribunal empowered by or under the Act and then only bar as contemplated by
Section 177 would be attracted. Reliance is placed on the Judgment in the
matter of Rajan Prabhakar Borde v/s MHADA 1983 MLJ 790. In Paragraph
8 of the Judgment the Court has observed thus:-
" This takes us back to the first part of section 177.
Section 177, first part lays down "that a Civil Court shall
have no jurisdiction in respect of any matter which the
Authority or the Tribunal is empowered by or under the Act
to determine." It is, therefore, clear that before the learned
Judge can proceed to throw out the notice of motion on the
ground that an injunction cannot be issued under section
177, in the latter part he must find that the matter which is
before him is a matter which the Act has empowered the
Tribunal or the Authority to determine. If the question
involved or the matter raised is not a question in respect of
which any power is conferred upon the Authority to
determine section 177 clearly has no application. I fail to
see how, therefore, the learned Judge can proceed to reject
or dismiss a notice of motion without first coming to the
conclusion that the matter is one in respect of which power
is conferred upon the Authority or the Tribunal under the
Act to determine that question. Unless it is such a matter,
27 ao1271.11 group.sxw
it would be out of pale of section 177 and it cannot then be
said that no injunction can be granted. Similar is the
position in regard to the duty imposed which has also to be
found out from the provisions of the Act."
16. In the instant matters since the trial Court has not recorded any finding as
to whether the Authority or Tribunal is empowered by or under the Act to
determine the issues raised before the Court, it was not proper on the part of the
trial Court to proceed to held that suit is barred by Section 177 of the MHADA
Act. The trial Court is expected to determine the issue as to whether the
questions raised before the Court are capable of being considered by the
Authority or Tribunal empowered by or under the Act and then only the trial
Court shall proceed to record finding as regards bar of jurisdiction.
17. For the reasons recorded above, Appeals are liable to be allowed and
same are accordingly allowed. The order passed by the trial Court directing
return of plaint on 9th November, 2011 in all Appeals stand quashed and set
aside and the matters are remitted back to the trial Court to determine the issue
in accordance with observations made in this Judgment. Considering the nature
of litigation it is desirable that the trial Court shall proceed to decide the notice
of motions as expeditiously as possible, preferably within 12 weeks from today.
The ad-interim relief operating in all the matters shall remain operative for a
period of one week and it will be open for the appellants to pray for its
continuation beyond one week to the trial Court.
18. In the facts and circumstances of this case, there shall be no order as to
costs.
(R.M.BORDE, J)
