Bombay High Court
Our Lady Of Vailankanni And ... vs St. Michael'S Church, A Public ... on 18 July, 2016
Bench: R.M. Savant
Judg AO-624-16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.624 OF 2016
ALONGWITH
CIVIL APPLICATION NO.798 OF 2016
Our Lady of Vailankanni and ]
Perpetual Succour Co-operative ]
Housing Society Ltd. duly registered ]
under the Co-operative Societies Act, ]
having its registered office at 557,
ig ]
Off. Senapati Bapat Marg, Marinagar ]
Colony, Mahim (West), ]
Mumbai-400 016 ].. Appellant
Versus
1. St. Michael's Church, a public ]
charitable trust, having its registered ]
Office at St. Michael's Church, Mahim, ]
Mumbai-400 016. ]
2. Rev. Fr. Salvadore Rodrigues, ]
(Deleted since deceased) ]
2(a) Rev. Fr. Simon Borges ]
Age 72 years Sole Trustee of St. Michaels ]
Church, having its office at St. Michael's ]
Church, Mahim (West), Mumbai-400 016. ]
3. Suraj Estate Developers Pvt. Ltd. ]
a Company registered under the ]
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Judg AO-624-16.doc
Companies Act, 1956, having its ]
Registered Office at 901, Silver Cascade ]
Mount Mary Road, Bandra (West), ]
Mumbai-400 050. ]
5. Out Lady of Lourdes Co-operative ]
Housing Society Ltd., A Co-operative ]
Housing Society registered under the ]
Maharashtra Co-operative Act 1960 ]
having its office at 557, Off Senapati ]
Bapat Marg, Marinagar Colony,
ig ]
Mahim (West), Mumbai-400 016. ]
6. The Mumbai Building Repairs and ]
Reconstruction Board (A MHADA unit) ]
Having its office at Griha Nirman Bhavan ]
Bandra (East), Mumbai-400 051 . ].. Respondents
Mr. G. S. Godbole i/by Mr. A. V. Jain for the Appellant.
Mr. C. Martis for the Respondent Nos.1 and 2.
Mr. Praveen Samdani, Senior Advocate i/by M/s. Shiralkar & Co., for
the Respondent No.3.
Ms. Sharmila Deshmukh for the Respondent No.5 MHADA.
CORAM : R.M. SAVANT, J.
DATE : 18th JULY 2016
ORAL JUDGMENT
1 The above Appeal from Order takes exception to the order
dated 04.05.2016 passed by the Learned 2nd Additional Principal Judge,
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City Civil Court, Mumbai, by which order, Notice of Motion No.957 of
2011 filed by the Appellant/original Plaintiff came to be dismissed.
2 The Plaintiff is a Co-operative Housing Society and has filed
the suit in question being SC Suit No.875 of 2011 for a mandatory
injunction and for execution of Deed of Conveyance against the Defendant
No.1 which is a public charitable trust and which is the owner of the land
in question on which the buildings of the Plaintiff are situated. The reliefs
by the Plaintiff in the said suit are therefore revolving around the
provisions of the Maharashtra Ownership of Flats Act, 1963 (For short "the
MOFA"). In the said suit, the Plaintiff had filed the instant Notice of
Motion being No.957 of 2011 claiming the relief of restraining the
Defendant No.3 who is a developer from carrying out any activity on the
suit property and or restraining the Defendant No.3 from entering into
remaining upon, digging, excavating, constructing, putting up structures
in any manner dealing with the suit property. The substance of the case of
the Plaintiff is that in the original plan sanctioned by the MCGM, three
gardens were shown in the suit property. However, the Defendant No.3
has got a new sanctioned plan, wherein the Defendant No.3 proposes to
construct a multi-storied building in place and instead of the gardens
thereby depriving the right of the Plaintiff society to the said three
gardens. The Plaintiff has therefore sought the injunctive reliefs in the
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above Notice of Motion which have been referred to hereinabove.
3 The Defendants filed their affidavits in reply to the said Notice
of Motion. In so far as the Defendant Nos.1 and 2 are concerned, it is their
case that the Charity Commissioner vide order dated 11.08.1992 passed
under Section 36 of the Bombay Public Trust Act, 1950, has accorded
sanction for the development of the suit property. It is the case of the
Defendant Nos.1 and 2 that the Plaintiff is not entitled to the benefits and
rights under the statutory provisions of the MOFA and that it is the
Defendant Nos.1 and 2 who have permitted the Defendant No.3 to
construct the building pursuant to the order dated 11.08.1992 passed by
the Charity Commissioner. The Defendant Nos.1 and 2 have also
contended that the suit in question is not maintainable.
4 In so far as the Defendant No.3 i.e. developer is concerned, in
its reply it has been stated that the development in the suit property is
being carried out in terms of the modified DCR 33(7). The Defendant No.3
has also contended that the NOC of the MHADA has been obtained and a
further revised NOC dated 25.06.2012 in terms of the modified DCR 33(7)
has also been obtained. It is the contention of the Defendant No.3 that in
terms of the conditions mentioned in the NOC issued by the MHADA the
existing tenants/occupants of the 12 cessed structures and Quinny House
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are required to be rehoused free of cost. It is contended in the affidavit-in-
rejoinder that the property is being developed not only for the benefit of
the tenants but also for the benefit of MHADA.
5 The Trial Court considered the said Notice of Motion and by
the impugned order dated 04.05.2016 has dismissed the same. The Trial
Court has adverted to the fact that the suit property is being developed
under the DCR 33(7) after obtaining NOC/NOCs from the Defendant No.5
MHADA. The Trial Court thereafter has adverted to the contention raised
on behalf of the Plaintiff that as per clause 43 of the agreement executed
by and between developer and the flat purchasers it is provided that the
said agreement shall always be subject to the provisions of the MOFA. The
contention raised on behalf of the Plaintiff that the developer cannot make
construction without the consent of the Plaintiff has been recorded by the
Trial Court. The Trial Court has thereafter adverted to the contention
raised on behalf of the Defendant No.3 that since the property is being
redeveloped under DCR 33(7) therefore in view of the provisions of
Section 190 of the MHAD Act the provisions of MOFA are not applicable to
the authority duly constituted under the MHAD Act or to any land or
building belonging to or vesting in any such Authority. The Trial Court
thereafter concluded that in view of the fact that the redevelopment is
under DCR 33(7) and in view of Section 190 of the MHAD Act, the
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provisions of MOFA are not applicable and therefore dismissed the Notice
of Motion. Hence, the Trial Court has primarily dismissed the Notice of
Motion on the ground of the applicability of Section 190 of MHAD Act. In
so far as the above Appeal from Order is concerned, the Respondent No.3
i.e. original Defendant No.3 has filed an affidavit in reply raising diverse
contentions based on the fact that the development being under DCR
33(7) and hence the obligations under provisions of the MOFA would have
to be considered in the said context.
6 At this stage, it would be relevant to reproduce Section 190 of
the MHAD Act which for the sake of ready reference is reproduced
hereinunder:-
"The Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and
Transfer) Act, 1963, shall not apply to the Authority duly
constituted under the Maharashtra Housing and Area
Development Act, 1976, or to any land or building
belonging to or vesting in any such Authority."
A reading of the said provision therefore discloses that the said provision
is not applicable to an Authority duly constituted under the MHAD Act
and in respect of any land or building belonging to or vesting in any such
authority. In the instant case, it is an undisputed position that the property
belongs to the Respondent No.1 trust and is therefore a private property
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wherein there are cessed structures. It is only in respect of property where
there are cessed structures belonging to a particular category that
redevelopment is permissible under DCR 33(7). Hence, in the instant case,
it cannot be said that the property belongs to MHADA or is vested in or
belonging to MHADA which is a pre-requisite for Section 190 to be
applicable. The Development Control Regulations are part of the
development plan which regulate the development in the city of Mumbai.
Merely because the redevelopment is in respect of structures which are
amenable to cess which a private landlord is require to pay to the
Municipal Corporation, it would not mean that the properties either vest
in or belong to the MHADA. In my view, therefore, the finding recorded by
the Learned Judge of the Trial Court that Section 190 of the MHAD Act is
applicable is therefore unsustainable and is accordingly set aside.
7 It is not necessary for this Court to go into the aspect of the
consequences of a redevelopment undertaken under DCR 33(7) vis-a-vis
the obligations under the provisions of the MOFA. Since the Trial Court
has not adjudicated the Notice of Motion from the said angle, it would be
in the Trial Court that the parties are free to urge their respective
contentions in that regard. This Court does not deem it appropriate to go
into the said contentions, and also does not express any opinion on the
said aspect. Hence, what would be the effect of the redevelopment
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undertaken under DCR 33(7) vis-a-vis the obligations under the provisions
of the MOFA would be an issue for the Trial Court to adjudicate. Hence,
the following directions are issued :-
I) The impugned order dated 04.05.2016 passed by the Learned 2 nd
Additional Principal Judge, City Civil Court, Mumbai is quashed and set
aside and the Notice of Motion is relegated back to the Trial Court for a
de-novo consideration of the same in terms of the observations made in
the instant order.
II) The Plaintiff and the Defendant No.3 to file further affidavits in
support of their respective assertions within two weeks from date.
III) The Trial Court is therefore directed to hear and decide the Notice
of Motion within six weeks from date.
IV) The Notice of Motion would be decided on its own merits and in
accordance with law having regard to the issue which has been culled out
in the instant order.
V) Needless to state that the contentions of the parties are kept open
for being urged before the Trial Court.
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8 The interim order which was in operation pending the Notice
of Motion would continue to operate pending the disposal of the Motion
on remand.
9 With the aforesaid directions, the Appeal from Order is
disposed of.
10 In view of the disposal of the Appeal from Order, the Civil
Application does not survive and to accordingly stand disposed of as such.
[R. M. SAVANT, J]
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