Shri.Manohar Dattatray ... vs Shri.Vaibhav Development ...
2017 Latest Caselaw 7025 Bom

                                                                                 3.FAST19108_2017.doc

Vidya Amin

                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CIVIL APPELLATE JURISDICTION

                                FIRST APPEAL (ST.) NO. 19108 OF 2017
                                               WITH
                                 CIVIL APPLICATION No. 1905 OF 2017
                                                 IN
                                FIRST APPEAL (ST.) NO. 19108 OF 2017

             Manohar Dattatray Rajopadhye           ... Appellant/applicant
                  Vs.
             Vaibhav Development Corporation & Ors. ... Respondents

             Mr. Pradeep J. Thorat a/w. Ms. Aditi Naikare, Advocate for the
             appellant/applicant.
             Mr. Niranjan A. Mogre, Advocate for respondent nos. 1 to 4.

                                                  CORAM: MRS.MRIDULA BHATKAR, J.
                                                    DATE: 12th September, 2017.
             ORDER:

Admit. By consent, the First Appeal is heard finally and

decided at the stage of admission, as short law point is involved.

2. This First Appeal is directed against the judgment and decree

dated 6th June, 2016 passed by the learned Judge of the City Civil

Court, Dindoshi, Mumbai in L.C. Suit No. 3255 of 2015 thereby

rejecting the said suit on the ground of maintainability under Order

VII Rule 11(d) of the Code of Civil Procedure. The appellant/plaintiff

has filed the suit for simplicitor injunction that the

respondents/defendant nos. 1 to 4 shall not interfere with the

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possession of the plaintiff and the occupants through the plaintiff and

not to prevent the entry of the plaintiff and the occupants from

entering into the suit land, i.e., Survey no. 101 corresponding to CTS

No. 778 and 777B, Survey No. 99, Hissa No. 1 corresponding to CTS

No. 664 and Survey No. 99, Hissa No. 2 corresponding to CTS No.

663, 665 part, 666 and 667 of village Ambivali in the area known as

Santosh Niwas and Sai Niwas otherwise than due process of law.

3. It is the case of the appellantplaintiff that he is the owner of the

structures standing on the suit land and he let out the structures to

nearly 180 tenants. The structures are standing prior to 1965. The

defendant nos. 2 and 3 are the tenants of the plaintiff. Defendant no.

1 is claiming to be a builder and brought by defendant nos. 2 and 3

for the purpose of development of the suit property. In fact, 90% of

the tenants have given consent in favour of the plaintiff to take steps

for redevelopment of suit property, but the defendants are

threatening them and the plaintiff. On 9 th November, 2015, higher

links of the respondents/defendants started forcibly asking the

tenants to sign certain papers and therefore, the appellant/plaintiff

was compelled to file the suit for injunction. After notice, the

defendants appeared. They filed their written statement and raised

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the issue of maintainability mainly on the ground that the plaintiff is a

slum lord. The suit area is declared as slum by the Government

Notification and therefore, no suit can be entertained by the Civil

Court to obtain any such orders in respect of implementation of the

scheme. The short point of determination involved in the Appeal as -

"Whether the order passed by the trial Court rejecting the

plaint under Order VII Rule 11(d) that the suit is barred

under section 42 of the Maharashtra Slum Areas

(Improvement, Clearance and Re-development)

(Amendment) Act, 2003 (hereinafter referred to as "the Act")

is illegal and wrong"

4. The learned counsel for the appellant has submitted that in the

plaint, the appellant/plaintiff is not asking any relief against the

authority working under the Act. He seeks relief against the private

parties who are threatening him and compelling the tenants to sign

the papers in favour of defendant no. 1/developer. He submitted that

the plaintiff may lose his case on merits, however, the suit itself is not

barred under section 42 of the Act. He submitted that the averments

in the plaint and the relief prayed in the plaint cannot be covered

within the ambit of section 42 of the Act. In support of his

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submissions, the learned counsel relied on the judgement of the

Single Judge of this Court in the case of Qari Mohammad Zakir

Hussain & Ors. vs. Municipal Corporation of Greater Mumbai &

Ors., reported in 2002(2) Bom. C.R. 98. The learned counsel for

the appellant has submitted that whether the area is declared slum or

not is irrelevant, as the appellant seeks some other relief than that

under the Slum Act.

5. Per contra, the learned counsel for the respondent has

submitted that the plaintiff has suppressed the fact that the suit area

is declared as slum by the Government Notification. The defendants,

who are the occupiers in the slum have decided who should be their

developer, however, the plaintiff being the slum lord, is trying to

obstruct this process and therefore, he has not come to the Court

with clean hands and his action in fact is a back door entry to

frustrate the scheme of redevelopment under the Act and thus he

supported the order passed by the trial Court.

6. Heard the submissions. The entire issue revolve around the

interpretation of Section 42 of the Act. Section 42 reads as thus-

"42. Bar of jurisdiction.

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Save as otherwise expressly provided in this Act, 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."

7. In the case of Qari Mohammad (supra), the Single Judge of

this Court while dealing with section 42 of the Act has held that:

"It is also well settled that even if the jurisdiction it so excluded, the Civil Courts have jurisdiction to 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."

It further held that :

"Applying the said principle to the present case, and more particularly on reading the plaint as a whole, it would be seen that necessary assertions have been made in the plaint in various paragraphs from paragraphs 13 to 36. The plaintiffs have given circumstances on the basis of which they have reasons to complain that the offending act of the authorities was obviously committed in connivance with respondents Nos. 5 to 8 so as to unduly favour the said respondents. The assertions, therefore made in the plaint are that the act done or intended to be done was clearly in transgression of the provisions of the Act of 1971. Such being the position, it would be incomprehensible that such a plaint ought to be returned being barred by section 42 of the Act."

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8. The ratio laid down in the case of Qari Mohammad that any

action if taken malafide under the Act can be challenged before the

Civil Court and there is no bar under section 42 of the Act to taking

away the jurisdiction of the Civil Court. However, in the case of Qari

Mohammad, the appellant/plaintiff has filed the suit wherein he has

claimed that his several request for redevelopment and construction

of tenements were turned down without indicating any reason by the

respondent/Corporation and they alloted the land to respondent nos.

5, 6 and 7 for development of the Society unilaterally. Thus,

allegation was made by the appellant/plaintiff of the collusion

between the respondent and the authority and therefore as action

alleged to be malafide, so it was held that the Civil Court is having

the jurisdiction. In the matter in hand, the suit is not filed against the

authority. It is filed only against the private parties.

9. It is useful to reproduce the relevant portion from Section 42 to

make the position clear:

"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".

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10. This part of section 42 includes three different propositions,

hence for correct grasp and better understanding of the statute, they

are to be read as follows:

Firstly, there should be conferment of power under or by that

Act;

Secondly, the action is to be taken or to be taken in pursuant to

that power;

Thirdly, no injunction shall be granted by any Court or other

authority in respect of that action.

11. Thus, all these three ingredients should be present to attract

section 42 of the Act. The action necessarily to be taken in

pursuance to the conferment of the power by or under the Act. For

the action otherwise taken under the Act, bar of not granting

injunction by the Court will not be applicable. Thus, the power is

conferred under the Act either to some person or to some authority.

The power also can be delegated by such authority to some person.

In the present case, the defendants are trying to obtain the consent

letters from the slum dwellers as a step towards redevelopment. This

activity to mobilize the slum dwellers undoubtedly done to take the

scheme of redevelopment of the slum ahead with the requisite

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consent of 70% of the slum dwellers. For want of requisite consent,

the development cannot proceed and the developer cannot be

appointed. However, this act of giving sanction or collecting the

sanction is not done under the conferment of power under the Act. It

is a voluntary act taken over by slum dwellers or under the leadership

of some slum dwellers as they all should come together and should

take steps to get the redevelopment materialized. Thus, the steps

taken otherwise without pursuance of conferment of powers to

facilitate the redevelopment or the steps taken to frustrate the

redevelopment either cannot be covered under section 42 of the Act.

The plaintiff being a slumlord, assumed is trying to puncture the

process of appointment of developer and redevelopment by the slum

dwellers, with a fear that he may lose his hold over his property and,

therefore, he has filed the suit. The trial Court while dealing with the

prayer of injunction will have to take into account the declaration of

slum and the object of the Act and so also suppression of this

material fact by the plaintiff, which has direct bearing on the merits of

the case. Thus, the plaintiff may not be entitled to get any such order

of injunction against the defendants, but this itself cannot be brought

within the ambit of section 42 as no action is taken in pursuance of

conferment of power under the act by the defendants. If a developer

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is appointed by an authority and if some steps are taken by the

developer of demolition or eviction, then, that act definitely will attract

section 42 of the Act as the developer is acting under the action

taken in pursuance of power conferred by or under the Act. This is

not the present case. Therefore, the order of the trial Court of

rejecting the plaint under Order VII Rule 11(d) of the CPC is set

aside. The trial Court to try and entertain the suit and decide the

Notice of Motion on merits independently. The parties to appear

before the trial Court on 26.9.2017.

12. First Appeal is disposed of accordingly.

13. In view of disposal of First Appeal, Civil Application is also

accordingly disposed of.

(MRIDULA BHATKAR, J.)