Bombay High Court
M/S. Mca Constructions vs Mrs.Ranjana Rajesh Patil on 16 June, 2016
Bench: R.M. Savant
(908)-AO-1206-15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1206 OF 2015
WITH
CIVIL APPLICATION NO.1532 OF 2015
IN
APPEAL FROM ORDER NO.1206 OF 2015
M/s. MCA Constructions, ]
having his office at 601, Elecon Arcade, ]
Andheri Kurla Road, Marol Naka, ig ].. Appellant/
Andheri (East), Mumbai-400 059. ] Applicant
Versus
1. Mrs. Ranjana Rajesh Patil, ]
Age: 38 years, Occu: Housewife, ]
2. Shri. Rajesh Vinayak Patil, ]
Age: 40 years, Occu: Nil, ]
both are having address at ]
001, Transit Camp, Hanuman Nagar, ]
Parsiwada, Andheri (East), ]
Mumbai-400 099. ]
3. State of Maharashtra, ]
through Government Pleader, ]
Dindoshi Court, Goregaon, Mumbai. ]
4. The Slum Rehabilitation Authority, ]
Anant Kanekar-Marg, ]
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Bandra (East), Mumbai-400 051. ]
5. Maharashtra Housing And ]
Development Board, Grihanirman ]
Bhavan, Bandra (East), Mumbai-400 051. ]
6. Municipal Corporation of ]
Greater Mumbai, Mahapalika Marg, ]
Fort, Mumbai-400 001. ]
7. Veer Hanuman Nagar SRA CHS Ltd.,
ig ]
Hanuman Nagar, Parsiwada, ]
Andheri (Est), Mumbai-400 099. ].. Respondents
Mr. Vishal Kanade a/w Mr. A. R. Shaikh i/by ASD Associates for the
Appellant/Applicant.
Mr. R. M. Yadav for the Respondent Nos.1 & 2.
Mrs. Poonam Bhosale AGP for the Respondent No.3
Mr. S. P. Thorat for the Respondent No.4.
Mr. C. R. Mhatre i/by Utangale & Co., for the Respondent No.5.
Mr. A. V. Diwate for the Respondent No.6.
Ms. Uma Sharma i/by Dharam & Co., for the Respondent No.7.
CORAM : R.M. SAVANT, J.
DATE : 16th JUNE 2016
ORAL JUDGMENT
1. Admit. Considering the challenge raised heard forthwith.
2. The above Appeal from Order takes exception to the order
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dated 13.07.2015 passed by the Learned Judge of the City Civil Court,
Borivali Division, Dindoshi, Mumbai. By the said order, Notice of Motion
No.1117 of 2015 filed by the Appellant i.e. the Defendant No.5 came to be
dismissed.
3. The Respondent Nos.1 and 2 herein are the original Plaintiffs
who have filed the suit in question wherein the main substantive relief
sought is by way of prayer clause (a). The same is reproduced hereinunder
for the sake of ready reference :-
"(a) This Hon'ble Court be pleased to restrain the
Defendant, their servants, agents and/or any other person/s
acting on its behalf, permanently by an order and
injunction of this Hon'ble Court from demolition of suit
premises 001 Transit Camp Hanuman Nagar, Prsiwada,
Andheri (East) Mumbai-400 099 and not to demolish the
transit camp till allotment of permanent alternate
accommodation in rehab component as per the law."
4. The Plaintiffs i.e. Respondent Nos.1 and 2 herein had their
structure on the plot of land wherein similar other structures were
situated and in respect of which a Slum Rehabilitation Scheme is being
implemented through the Appellant i.e. the Defendant No.5 to the suit.
There is no dispute that the Plaintiffs have been held to be entitled to the
allotment of permanent alternate accommodation. With a view to
implement the said scheme, the Plaintiffs' original structure was
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demolished and the Plaintiffs were moved to the temporary transit
accommodation being tenement No.001. The occupation of the Plaintiffs
of the said temporary transit accommodation in terms of said Slum
Rehabilitation Scheme was to be only till the permanent alternate
accommodation was made available to the Plaintiffs.
5. The Plaintiffs were to be accommodated in Rehab Building
No.2. It seems that the Rehab Building No.2 was complete and the
Plaintiffs were asked to shift to the permanent alternate accommodation
being Tenement No.006 admeasuring 225 sq.ft. in the said Rehab Building
No.2. It seems that getting wind of the fact that the temporary transit
accommodation occupied by them would be demolished and they would
be asked to move to the permanent alternate accommodation that the
Plaintiffs filed the suit in question being SC Suit No.2071 of 2013, in
which the substantive relief sought by the Plaintiffs has already been
adverted to hereinabove. In the said suit, the Plaintiffs filed a Notice of
Motion and moved the same for ad-interim relief on 15.07.2013. A
Learned Judge of the City Civil Court by order dated 15.07.2013 granted
ad-interim relief in the following terms :-
"Ad-interim injunction granted in following terms:-
Defendant No.5 not to demolish the transit accommodation
No.001 of the Plaintiffs or in any way cause damage to it so
as to make it inhabitable and not to cut any existing
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amenities to it till next date."
6. The gist of the reasoning of the Learned Judge as can be seen
from the order dated 15.07.2013 is that the Learned Judge found fault
with the Defendant No.5 developer of not obtaining the occupation
certificate and allowing the eligible slum dwellers to occupy the
permanent alternate accommodation without such occupation certificate.
Hence, the principal ground on which the ad-interim relief was granted
was that in respect of the Rehab Building No.2 occupation certificate was
not obtained by the Defendant No.5.
7. The Defendant No.5 thereafter obtained the full occupation
certificate which is dated 21.01.2015 for the said Rehab Building No.2.
The said occupation certificate is at page No.25 of the Appeal paper book.
Clause (1) of the said occupation certificate mentions that the same is
granted for 72 numbers of rehab residential tenements i.e. GR + 7 upper
floors. It further states that all the pending LOI and IOA conditions shall
be duly complied with before asking full occupation to building under
reference. The Defendant No.5 armed with the said occupation certificate
dated 21.01.2015 filed the instant Notice of Motion being No.1117 of
2015 seeking interim relief in terms of prayer clause (a). The said prayer
clause (a) for the sake of ready reference is reproduced hereinunder :-
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"(a) This Hon'ble Court be pleased to vacate the order
dated 15.07.2013 passed by this Hon'ble Court in Notice of
Motion No.1117 of 2013 and direct the Plaintiffs to vacate
the suit premises i.e. Transit Room No.001 and shift to the
Permanent Accommodation being room No.006 in Rehab
Building No.2 constructed on the suit property."
8. The instant Notice of Motion was heard by the Learned Judge
of the City Civil Court, Borivali Division, Dindoshi who by the impugned
order dated 13.07.2015 dismissed the same. Before the Trial Court it was
sought to be contended on behalf of the Plaintiffs that the developers have
joined hands with some of the tenants and even SRA and as such
allotment of permanent alternate accommodation was not legal and valid.
The Learned Judge adverted to the said contention urged on behalf of the
Plaintiffs as also contention urged on behalf of the SRA that the allotment
has been done by the society only in consultation with the developers. On
behalf of the Defendant No.5 i.e. Appellant herein though it was accepted
by it that there was no drawal of lots, it was pointed out that the Assistant
Registrar of Co-operative Societies (SRA) has checked and submitted a
report in respect of the allotment and the same also been accepted. The
Trial Court has rejected the Motion and dismissed the same on the ground
that since the procedure for allotment was not followed, the relief sought
by the Defendant No.5 could not be granted. The Trial Court has observed
that though many persons in the transit camp have occupied the
permanent accommodation in the rehab building, but has observed that
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there was no allotment as required by law. The Trial Court was of view
that unless proper procedure for allotment is followed, the Plaintiffs
cannot be forced to vacate the transit accommodation as the developer is
bound to provide permanent accommodation after due compliance of the
procedure. As indicated above, the Trial Court i.e. the Learned Judge of
the City Civil Court, Borivali Division, Dindoshi has accordingly by the
impugned order dismissed the Notice of Motion.
9.
The Learned Counsel appearing on behalf of the Appellant i.e.
the Defendant No.5 Mr. Vishal Kanade would contend that since the ad-
interim order dated 15.07.2013 was passed by the Trial Court principally
on the ground that there was no occupation certificate in respect of Rehab
Building No.2, once the occupation certificate was obtained the said ad-
interim order was required to be vacated. It was the submission of Mr.
Vishal Kanade that assuming that there is some breach in procedure in
allotment of permanent alternate accommodation, the grievance of the
Plaintiffs can only be against the society of the slum dwellers but in the
guise of the said grievance, the Plaintiffs cannot continue to occupy the
temporary transit accommodation. It was the submission of Mr. Vishal
Kanade that almost all the occupants of the transit accommodation have
shifted to the permanent accommodation in the said Rehab Building No.2
save and except the Plaintiffs.
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10. Per contra, the Learned Counsel Mr. R. M. Yadav appearing
for the original Plaintiffs i.e. the Respondent Nos.1 and 2 herein sought to
justify the order. The Learned Counsel sought to reiterate the grievance of
the Plaintiffs as regards the procedure that was required to be followed
prior to making the allotments. It was also his submission that there was
no proper access to the said Rehab Building No.2. It was also sought to be
contended that the said Rehab Building No.2 has not been constructed in
terms of the approved plans. The Learned Counsel appearing for the SRA
as well as the Learned Counsel appearing for the Respondent No.7 society
of the slum dwellers accept the position that more than 95% slum dwellers
have shifted to the permanent accommodation.
11. Having heard the Learned Counsel for the parties, I have
considered the rival contentions.
12. The issue that arises whether the Plaintiffs i.e. the Respondent
Nos.1 and 2 herein are entitled to continue on the site in question in the
temporary transit accommodation provided to them pending the
construction of the permanent accommodation. As indicated above, one of
the essential features of a Slum Rehabilitation Scheme is that the eligible
slum dwellers have to be provided for temporary transit accommodation
pending the construction of the permanent accommodation for them. In
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the instant case, the proponent of the said scheme i.e. Defendant No.5 has
provided temporary transit accommodation to the eligible slum dwellers
till permanent accommodation is made available to him or her. In the
instant case, as indicated above, ad-interim relief in the Notice of Motion
filed by the Respondent Nos.1 and 2 was granted principally because the
occupation certificate in respect of the Rehab Building No.2 was not
obtained by the Defendant No.5. The said occupation certificate was
thereafter obtained on 21.01.2015 for the said Rehab Building No.2. Once
that be so, then the Plaintiffs could not have any grievance and were
required to shift to the said permanent accommodation. In so far as the
procedure for allotment etc. is concerned, the grievance of the Plaintiffs if
any can be against the society of the slum dwellers as it is the society of
the slum dwellers which is concerned with the allotment of tenements in
the rehab building. In the instant case, though it has come on record that
no drawal of lots had taken place nevertheless it seems that the Assistant
Registrar of Co-operative Societies (SRA) has carried out inspection and
submitted his report which was accepted.
13. There is no dispute about the fact that out of 72 eligible slum
dwellers almost 70 slum dwellers have been shifted to the permanent
alternate accommodation and the Plaintiffs are possibly the only ones who
have to shift to the permanent alternate accommodation. The continuation
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of the Plaintiffs on the site in question when the permanent
accommodation is made available to them is not in consonance with the
scheme of the Slum Rehabilitation Scheme as for the completion of the
Slum Rehabilitation Scheme the structure wherein the temporary transit
accommodation is provided has to be removed so as to facilitate the
further implementation of the scheme and its completion. The Learned
Judge of the City Civil Court has glossed over the aforesaid facts and on
the ground that procedure of drawal of lots has not been followed, refused
to vacate the ad-interim relief especially when all other slum dwellers
have shifted to the permanent alternate accommodation and the
occupation certificate in respect of the Rehab Building No.2 has also been
obtained. The continuation of the Plaintiffs on the site in question in the
temporary transit accommodation would also have consequences for the
Defendant No.5 in the matter of obtaining the completion certificate in
respect of the project. The contention raised on behalf of the Plaintiffs that
there is no access also cannot be accepted once the occupation certificate
is granted. The Plaintiffs it seems for the reasons best known to them are
raising a new objection every time. This can be seen from the fact that an
objection is now sought to be raised that the rehab building has not been
constructed as per standard plan which was never raised earlier.
14. In my view, therefore the order passed by the Trial Court
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rejecting the Notice of Motion filed by the Defendant No.5 cannot be
sustained. The same is required to be set aside. The Appeal from Order is
accordingly allowed. The consequence of the same would be that the
Notice of Motion filed by the Defendant No.5 would stand allowed in
terms of prayer clause (a). The Plaintiffs would be required to shift to the
permanent accommodation in Rehab Building No.2. The Defendant No.5
and Defendant No.7 would see to it that the said Tenement No.006 is
handed over to the Plaintiffs for occupation in the same condition as the
tenements to the other eligible slum dwellers.
15. In view of the Appeal from Order being disposed of, the Civil
Application does not survive and to accordingly stand disposed of as such.
[R.M. SAVANT, J]
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