Bombay High Court
Noor Mohd. Shami Shaikh & Anr. vs Maharashtra Housing & ... on 25 October, 2013
Bench: A.P. Bhangale
FA-302-2013-FA-303-2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.302 OF 2013
WITH
FIRST APPEAL NO.303 OF 2013
WITH
CIVIL APPLICATION NO.1031 OF 2013
IN
FIRST APPEAL NO.303 OF 2013
NOOR MOHD. SHAMI SHAIKH & ANR. )...APPELLANTS
V/s.
MAHARASHTRA HOUSING & DEVELOPMENT )
BOARD AND ORS. )...RESPONDENTS
Mr.Y.E.Mooman i/b. Manisha Gawde Advocate for the Appellant.
Mrs.Geeta Joglekar Advocate for the Respondent No.2.
Mr.Y.S.Naidu Advocate for the Respondent No.4.
CORAM : A. P. BHANGALE, J.
DATE ON WHICH :
JUDGMENT IS RESERVED : 14th OCTOBER, 2013.
DATE ON WHICH :
JUDGMENT IS PRONOUNCED : 25th OCTOBER, 2013.
ORDER :
1 These appeals are directed against common order dated
6.2.2013 passed by learned City Civil Judge, Mumbai, in Chamber
Summons No.784 of 2011 and Chamber Summons No.1317 of 2012 in
L.C.Suit No.2145 of 2009, whereby, learned Judge held that the plaint
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in L.C.Suit No.2145 of 2009 is bound to be rejected under Order 11
Rule 7(d) of the Code of Civil Procedure on the ground that pre-suit
statutory notices as mandatorily required under Section 527 of Mumbai
Municipal Corporation Act, 1888, and as required under Section 164 of
the Maharashtra Co-operative Societies Act, 1960, as required
according to law, were not issued and served upon the Public
Authorities namely Municipal Corporation of Greater Mumbai (MCGM)
and Registrar of the Co-operative Societies.
2 It appears that the plaint in the L.C.Suit No.2145 of 2009
contained averments in respect of Development Control Regulations
issued by the Planning Authority i.e. MCGM. According to plaintiffs,
Maharashtra Housing and Area Development Authority (MHADA) is a
body responsible for development of housing. According to plaintiff,
defendant no.2 MCGM is owner of plot of land bearing C.T.Survey No.
1589, Byculla Division, while M/s.NAN Developers Pvt. Ltd. (defendant
no.3) is a Developer and Builder, who undertook development work on
the said plot of land. The plaintiff claimed possession of Room No.16,
"C" Block in Afzal Chawl, Opposite Maratha Mandir, Dr.A.B.Nair Road,
Mumbai Central, Mumbai - 400 008. According to plaintiffs, tenants
and occupants of Afzal Chawl situated on the City Survey No.1589 of
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Byculla Division decided to go for redevelopment under the scheme
formulated under Development Control Regulations, and therefore,
association of the occupants in the chawl had called a General Body
Meeting on 24.12.2001, to discuss the benefit of redevelopment.
Defendant no.3 was appointed as developer to pursue redevelopment
work. Tenants and occupants of Afzal chawl consented in favour of
defendant no.3 and the consent was forwarded to MCGM and other
authorities concerned for necessary approval and sanction. Plaintiffs
and defendant no.3 had entered into an agreement with the proposed
Afzal Co-operative Housing Society under Agreement dated 27.9.2006,
and agreed to complete the construction. To facilitate redevelopment,
defendant no.3 agreed to provide temporary transit accommodation of
110 to 120 sq.feet on the same plot or in the same area and agreed to
bear all the expenses. Meeting was held in September 2006 between
committee members and defendant no.3 regarding the approval of
redevelopment scheme and the plan to take benefit of Regulation 33(a)
of the Development Control Rules. Defendant no.3 agreed to provide
larger area and more benefits to tenants / occupants of the chawl. The
builder had agreed for compensation / rent to enable the plaintiffs to
make arrangements for temporary transit accommodation. Thus,
plaintiffs have agreed to participate in redevelopment of Afzal chawl
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through defendant no.3 and also agreed to shift to the alternate transit
accommodation as defendant no.3 was to pay rent for transit
accommodation before he could hand over permanent accommodation
for the plaintiffs.
3 It is case of the plaintiffs that two buildings "A" and "B"
Wings of ground plus seven storeys for rehabilitation were constructed,
but occupation certificate was not obtained by defendant no.3. Under
these circumstances, tenants and occupants of Afzal chawl had forcibly
taken possession of different rooms of their choice without following
the procedure of lottery as agreed. Defendant no.3 paid compensation
towards rent for transit accommodation till 31.3.2009. Thus, according
to plaintiffs, after entire development, plaintiffs were entitled to
minimum area of 27.88 sq.mts. (300 sq.feet carpet) in the newly
constructed building as permanent alternate accommodation in lieu of
their old premises under Rule 4 of Appendix IIIA. According to
plaintiffs, it was obligatory upon sanctioning authority to consider
prevailing law so as to direct defendant no.3 to construct rehabilitation
components of required dimensions. But there was breach of statutory
obligation on the part of MCGM, and therefore, plaintiffs are entitled
for relief of declaration that they are entitled for all the benefits of
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redevelopment under Development Control Regulation 33(7) read
along with Appendix III of Development Control Regulation. The
plaintiffs also prayed for declaration that agreement dated 27.9.2006 is
valid and subsisting and binding upon defendant no.3 and that
plaintiffs were entitled for accommodation in the newly constructed
building in lieu of the old premises in their possession. They also
prayed for injunction against defendant no.3, not to create third party
interest in respect of the premises to which plaintiffs are entitled. The
plaintiffs in paragraph 25 averred that notice under Section 173 of
MHADA Act is not required to be given on the ground that plaintiffs are
seeking enforcement of statutory obligation against defendant no.1. It
is also averred that statutory notice as contemplated under Section 527
of MMC Act is not required to be given as the defendant no.2 is sued in
dual capacity as local body and Planning Authority which has not
discharged its duty as local authority under MMC Act. Thus, according
to plaintiff notice is deemed to have been waived. Further, according to
plaintiffs, statutory notice contemplated under Section 164 of
Maharashtra Co-operative Societies Act is also not required to be given.
It is contended that such notice is deemed to have been waived by
defendant no.4 in the facts and circumstances of the case. With
reference to this averments, following prayers were made :
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a) That this Hon'ble Court be pleased to declare that
the plaintiffs being the occupants of the old premises
viz. Room No.16, C-Block, Afzal Chawl, Opp.
Maratha Mandir, Dr. Anandrao Naik Marg, Mumbai
Central, Mumbai - 400 008 are entitled to all the
benefits of redevelopment as set out under
Development Control Regulation 33(9) along with
the Appendix IIIA of D.C.Regulation;
b)In the alternative of prayer (a) above this Hon'ble
Court be pleased to declare that the plaintiffs being
the occupants are entitled to all the benefits of
redevelopment as set out under Development
Control Regulations 33(7) along with the Appendix
III of the Development Control Regulations;
c) That it be declared by this Hon'ble Court that the
agreement dated 27.9.2006 being Exhibit-B is valid
and still subsisting and in force and binding upon the
defendant no.3;
d) It be declared that the plaintiffs are entitle to an
accommodation in the newly constructed building
facing Dr.Anandrao Naik Road in lieu of the plaintiffs
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handed over the possession of the old premises viz.
Room No.16, C-Block, Afzal Chawl, Opp. Maratha
Mandir, Dr.Anandrao Naik Marg, Mumbai Central,
Mumbai - 400 008 to the defendant no.3 and as per
the agreement dated 27.9.2006 being Exhibit-B;
e-1) it be declared that the defendant no.4 has
forcibly and illegally taken the possession of
permanent alternate accommodation being Flat No.
206 situated on the 2nd floor of C-Wing, Afzal Co-
operative Housing Society Limited, Mumbai Central,
Mumbai - 400 008;
e-2) this Hon'ble Court be pleased to pass mandatory
order and direction interalia directing the defendant
no.4 to quit, vacate and handover the peaceful
possession of the Flat No.206 situated on the 2nd
floor of C-Wing, Afzal Co-operative Housing Society
Limited, Mumbai Central, Mumbai-400 008 to the
plaintiffs;
f) That pending the hearing and final disposal of the
suit the defendants their servants, agents and
persons claiming through or under them be
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restrained by an order and injunction of this Hon'ble
Court from parting with possession of and/or
creating any third party interest in respect of the
permanent alternate accommodation to which the
plaintiffs are entitle in lieu of old premises viz. Room
No.16, C-Block, Afzal chawl, Opp. Maratha Mandir,
Dr.Anandrao Nail Marg, Mumbai Central, Mumbai -
400 008;
g) That pending the hearing and final disposal of the
suit the defendant no.3 their servants, agents and
persons claiming through or under them be
restrained by an order and injunction of this Hon'ble
court from creating third party rights in any of the
premises constructed or to be constructed for sale
component till plaintiffs are placed in possession of
permanent alternate accommodation as per the
terms and conditions of the agreement and the
assurances and the undertakings given to the
plaintiffs as set out in the declaration dated 15th
September, 2006 being Exhibit-C;
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h) that pending the hearing and final disposal of the
suit the defendants be directed to pay the
compensation for temporary alternate
accommodation for the period of April, 2009 till the
handing over the permanent alternate
accommodation in lieu of old premises viz. Room No.
16, C-Block, Afzal chawl, Opp. Maratha Mandir,
Dr.Anandrao Naik Marg, Mumbai Central, Mumbai -
400 008;
4 Heard submissions at the bar. Learned advocate for the
appellant criticizing the impugned order submitted that learned City
Civil Judge erred to held that pre-suit statutory notices under Section
527 of MMC Act and under Section 164 of Maharashtra Co-operative
Societies Act were necessary before institution of the suit. According to
Mr.Mooman, learned counsel for the appellant, no such statutory
notices were required to be issued and served, as the plaintiffs were
intending to enforce statutory obligations on the part of MMC and on
the part of Co-operative Society (defendant no.5). Learned counsel
Mr.Mooman argued that there is a deemed waiver of such notices even
if it is held that notices are required mandatorily according to law. He
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argued that when written statement was tendered by defendant
MCGM, trial court ought to have decided the suit on the basis of all the
issues raised by pleadings of the parties.
5 On behalf of MMC, learned advocate argued that pre-suit
statutory notice as required under Section 527 of MMC Act, 1888, is
mandatory and the waiver was out of question when preliminary issue
as to the legal bar for institution of the suit was raised by Chamber
summons taken out on behalf of the MMC. She supported the
impugned judgment and order. While according to learned advocate
Mr.Naidu, pre-suit statutory notices, as required under Section 527 of
the Corporation Act, 1888, and as required under Section 164 of the
Maharashtra Co-operative Societies Act, 1960, were mandatory and
there was no urgency of any kind to institute suit without issuance and
service of such notices.
6 Section 9 of Code of Civil procedure is as follows :
9. Courts to try all civil suits unless barred -
The Courts shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a
civil nature excepting suits of which their
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cognizance is either expressly or impliedly
barred.
Explanation I - A suit in which the right to
property or to an office is contested is a suit of a
civil nature, notwithstanding that such right may
depend entirely on the decision of questions as to
religious rites or ceremonies.
Explanation II - For the purposes of this section,
it is immaterial whether or not any fees are
attached to the office referred to in Explanation I
or whether or not such office is attached to a
particular place.
7 I have considered the submissions as also citations sought
to be relied upon by learned advocates in support of their rival
submissions. This court while deciding First Appeal No.572 of 2013
in Akash Impex v/s. Municipal Corporation of Greater Mumbai,
made reference to judicial precedents on the subject and discussed
legal position to hold that when pre-suit statutory notice is required to
be issued and served mandatorily, no civil suit can be instituted unless
there is exceptional urgency, which may be excusable, particularly in
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cases of quiatimet injunction when suit if filed against Municipal
Corporation for an injunction or to prevent it from doing an act which
is threatened but not done.
8 Pre-suit statutory notice as required under Section 527 of
MMC Act, as also under Section 164 of MCS Act, 1960, required to be
addressed to the Registrar before initiating suit clearly served public
purpose underlying the mandatory provisions. When such notices are
issued and served upon public authorities, they get reasonable
opportunity to avoid unnecessary litigation and also to avoid
unnecessary expenses which may have to be spent in a long drawn out
legal battle. When language of the provision is clear and unambiguous,
it is duty of the court to give effect to mandatory legal provisions.
Therefore, in such cases, equitable consideration of hardship is not
considered as a legitimate ground for not faithfully implementing the
mandate of legislature. The principle of waiver expressed or implied as
such is not an exception to Section 527 of MMC Act, but as held in Full
Bench ruling of Vasant Ambadas Pandit vs. Bombay Municipal
Corporation & Others, the issue as to "whether there is such waiver"
is to be tried by the civil court.
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9 In the case in hand, since Municipal Corporation of Greater
Mumbai itself had objected institution of the suit, as also other
defendant, objection was also raised under Section 164 of the MCS Act,
1960, there was no question to infer waiver or to try question of waiver.
Under Section 23 of the Indian Contract Act, once it is observed that
waiver of pre-suit statutory notice is contrary to law, it may be noted
that the statutory requirement of notice cannot be waived by contract,
as it would be opposed to public policy of law to waive pre-suit
statutory notice mandatorily required according to law, because any
agreement for something prohibited by law, is an offending public
policy. An agreement which contravenes prohibition against the
institution of the suit of the offending provision under Section 23 of the
Indian Contract Act, particularly because, object of pre-suit statutory
notice is to furnish an opportunity to the Public Authority to know
before hand about the prospective plaintiff, particulars of his name,
address, grievance, cause of action etc., so that Public Authority can re-
consider its legal position and may resolve to take steps to settle the
claim at pre-litigation stage. The provision is therefore intended to
save the valuable public time and money.
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10 Under these circumstances, the mandate of law contained
in Section 527 of MMC Act against institution of suit requires
obedience by prospective plaintiffs as prospective plaintiffs can also
save time and money of a Public Authority resolved to settle the claim
at pre-litigation stage. When language used in the statute is clear and
unambiguous it is duty of the court to give effect to it and
considerations of hardship will not be a legitimate ground for not to
implement the mandate faithfully as intended by legislature. The
provision under Section 527 of MMC Act as also under Section 164 of
MCS Act do serve public purpose. Therefore, in view of the ruling in
Harkishan Lal vs. State of Jammu & Kashmir reported in (1994) 4
SCC page 422, requirement which serves public purpose, cannot be
waived. Except in case of urgency it may be excusable in a rare case,
when plaintiff is required to be protected against threatened action of
demolition of his house or shop as the case may be.
11 Considering the legal position therefore, regarding
issuance and service of pre-suit statutory notices, and also Order 7 Rule
11(d) of Code of Civil Procedure, the plaint considering the averments
and prayers therein, was liable to be rejected and no blame can be
imputed to learned Judge, City Civil Court, Greater Bombay, in this
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regard. Although plaint is rejected, it is not end of the road for the
plaintiffs, as they can lodge a fresh plaint after compliance of
mandatory requirements according to law, by issuing and serving pre-
suit statutory notices upon the Public Authorities impleaded as
defendants in the present case. Under Order 7 Rule 13 it is open for
the plaintiffs to present a fresh plaint in respect of the same cause of
action. Order 7 Rule 13 reads as under :
Where rejection of plaint does not preclude
presentation if fresh plaint -
The rejection of the plaint on any of the grounds
hereinbefore mentioned shall not of its own force
preclude the plaintiff from presenting a fresh
plaint in respect of the same cause of action.
High Court Amendment - [Bombay] - In Order
VII, for the existing Rule 13 and its marginal
note, substitute the following as Rule 13 and
marginal note :-
"13. Where rejection of plaint does not preclude
presentation of fresh plaint - The rejection of the
plaint on any of the grounds hereinbefore
mentioned or on the ground mentioned in Rule
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14-A(5)(a) of Order VI shall not its own force
preclude the plaintiff from presenting a fresh
plaint in respect of the same cause of
action." (1-10-1983)
12 For the aforesaid reasons therefore, I do not find merit in
the appeals.
Appeals are dismissed.
14 Learned counsel for the appellant stated that there was
statement by learned advocate for respondent no.4 that he would not
withdraw the amount deposited in the trial court, though trial court has
granted permission to withdraw the amount lying and deposited in the
trial court.
15 Learned advocate for respondent no.4 strongly objected to
continue the statement as it is open for the appellant / plaintiff to file
fresh suit. He is not ready to continue the statement any further as the
appeal is decided.
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16 The prayer of continuation of the statement made by
learned advocate for respondent no.4 on behalf of respondent no.4
cannot continue and is rejected.
17 Civil Application No.1031 of 2013 stands disposed of.
ig (A. P. BHANGALE, J.)
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