Bombay High Court
Shri. Sayed Arshad Zaidi (Legal ... vs The Municipal Commissioner, The ... on 3 February, 2022
Bench: S. K. Shinde
Digitally
signed by
SHAMBHAVI
CP-433-2021.odt
SHAMBHAVI NILESH
NILESH SHIVGAN
SHIVGAN Date:
2022.02.03
15:32:35 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
+0530 CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION NO.433 OF 2021
IN
CIVIL APPLICATION NO.1684 OF 2018
IN
FIRST APPEAL NO.846 OF 2003
Shri Sayed Arshad Zaidi,
Age: 42 yrs., Occ: Business,
heir and legal representative of
Deceased Smt. Mehmood Fatima
Residing at 4/159, Ambedkar Nagar,
Worli, Mumbai-400 018 ...Petitioner/
Appellant.
Vs
1. The Municipal Commissioner,
The Municipal Corporation of Greater Bombay
Mahapalika Marg, Fort, Mumbai-400 001.
2. The Addl. Commissioner (Estate),
The Municipal Corporation of Greater Bombay,
Mahapalika Marg, Fort, Mumbai-400 001
3. The Asstt. Muncipal Commissioner (G-South),
The Municipal Corporation of Greater Bombay,
Mahapalika Marg, Fort, Mumbai-400 001,
4. Shankhla Realtors Pvt. Ltd.,
A Company incorporated under the
Companies Act, 1956 having its office at
A-1, Swati Manor, N.C.Kelkar Marg,
Opp: Shivaji Temple, Dadar,
Mumbai-400 028,
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5. Mr. Udaykant Jha
Chief Promoter of Radha Krishna
Co-operative Housing Society,
(Proposed), having his office at
C.S.NO.6/71, 7/71,
Lower Parel Division, G. South
Ward, Kamalpatra Chawl, Senapati Bapat
Marg, Lower Parel, Mumbai-400 030,
6. Mr. Murtaza Ali Rajkotwala,
M/s. Alamdar Infrastructure Pvt. Ltd.,
Marathon Innova Corporate Centre,
C-601, 6th Floor,
Off. Ganpatrao Kadam Marg,
Lower Parel, Mumbai-400 013 ... Respondents
...
Mr. A.N.Mulla for the Petitioner/Appellant.
Mr. A.Y.Sakhare, Senior Advocate with Joel Carloes with Mr.
Santosh Parad with Mr. Om Suryavanshi i/by Mr. Sunil
Sonawane for Respondent Nos.1 to 3-MCGM.
Ms. Vidya Khatu with U.H.Deshpande for Respondent No.4.
Mr. Girish Godbole with Ms. Laxmi Jessani i/by M/s. Laxmi
Jessani for Respondent No.5.
Mr. V.R.Dhond, Senior Advocate with Mr. Mustafa Kachwala
with Ms. Roshani Sewlani i/by Kachwala Misar and Co. for
Respondent No.6.
CORAM : SANDEEP K. SHINDE J.
RESERVED ON : FEBRUARY 1, 2022.
PRONOUNCED ON: FEBRUARY 3, 2022.
(Through Video Conferencing)
JUDGMENT :
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Appellant in First Appeal No.846 of 2003 seeks to initiate
action against the respondent nos.1 to 3 under the Contempt of
Courts Act, 1971, for willfully disobeying two orders; one dated 30 th
January, 1985 passed by the Hon'ble Supreme Court in SLP's bearing
nos. 6452, 7142 to 7145 and 10621 of 1985 and another dated 16 th
October, 2018 passed by this Court, in Civil Application No.1684 of
2018 in the subject First Appeal.
2 Briefly stated, it is Petitioner's case that;
Smt. Mehmood Fatima, predecessor-in-title of the
petitioner-plaintiff was Vacant Land Tenant (VLT) of the Municipal
Corporation of Greater Mumbai, in respect of the land admeasuring
1000 square yards, a part of C.S. Nos.6/71 and 7/71 at, Lower Parel
Division at Senapati Bapat Marg, Worli, Mumbai-400 018 ('Suit Plot/
Property'). That, Petitioner is grand-son of Smt. Mehmood. His
father, Mustafa, constructed four chawls on the suit plot and
accommodated 35 tenants. They were paying rent to him till 1980-
81. In August, 1981, Corporation terminated the tenancy concerning
Suit Plot and adopted eviction proceedings under Section 105B, of
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the BMC Act. Before the warrant of possession could be executed in
the eviction proceedings, eviction action was challenged, before the
City Civil Court, Mumbai. The Principal Judge, City Civil Court,
Mumbai vide order dated 14th July, 1983, quashed eviction orders.
Whereafter, the Corporation challenged the order of the Principal
Judge, City Civil Court, Bombay in batch of Writ Petitions. The
Division Bench of this Court vide judgment dated 20 th August, 1984
quashed the impugned judgment of the City Civil Court and upheld
the eviction orders, passed by the Enquiry Officer of the Corporation
under Section 105B of the BMC Act. It appears, the lessees (VLT) of
the adjoining lands, forming a part of CS Nos.6 of 71 and 7 of 71
(respondents in Writ Petition No.4077 of 1983 and 4083 of 1983)
preferred SLP Nos.6452, 7142 to 7145 and 10621 of 1985 against the
judgment of the Division Bench. In these SLPs, following order was
passed, on 30th January, 1985;
" We observe, however that the petitioners will not
be disturbed in their possession of the land so long as
the land is not immediately required by the Municipal
Corporation. We make it clear that, the Municipal
Corporation will be the sole judge of such need."
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3 Be that as it may, indisputably, the judgment of the
Division Bench was not, challenged by the petitioner or his
predecessor-in-title. As a consequence, applicant ceased to be a
tenant of the Corporation in respect of the land in question since 24 th
August, 1984, a date on which tenancy was terminated.
4 It is in the year 1991, Petitioner instituted, a Long Cause
Suit No.9146 of 1991, against the Corporation, seeking decree to
restrain the Corporation from recovering rent from the tenants in the
suit property and in any way interfering with the petitioner's
possession and enjoyment of four chawls or structures on the suit
property situated at Senapati Bapat Marg, Worli, Bombay 400 018.
The next prayer was for declaration that action of Corporation was
illegal and without authority. The learned Judge, City Civil Court,
Mumbai dismissed the suit, reason being, that the applicant/plaintiff
failed to prove his, "lawful possession", in the suit property as on
the date of instituting the suit. In the consequence, the learned Judge
declined decree of perpetual injunction sought by the Petitioner.
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5 Findings recorded by the Learned City Judge, were as
under;
a. That on 6th July, 1998 (Possession Receipt
Exhibit 10) illustrates that possession of chawls
was taken by officials of Corporation in presence
of Police officials;
b. The Plaintiff cannot allege any
highhandedness on the part of Corporation and
cannot contend that no possession of the
property was given to Corporation;
c. That Plaintiff has right under Statute to
claim compensation, in respect of standing
chawl, he has independent recourse to adopt;
d. Pursuant to eviction order passed under
Section 105-B, of the MMC Act, and the
subsequent order, of Hon'ble High Court in Writ
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Petition No.4081 of 1985, Corporation has legally
taken possession of the property and tenants
have attorned the tenancy rights in favour of
Corporation;
e. The status of the plaintiff to the Suit
Property after ejectment proceedings was that of
trespasser and such possession having taken by
the Corporation on 6th July, 1998, nothing
remains in plaintiff's assertion against the
Corporation.
6 The judgment and decree dated 18th February, 2003 in
L.C.Suit No.1964 of 1991, came to be challenged in First Appeal
No.846 of 2003. Pending appeal, appellant moved a Civil Application
No.4814 of 2011, seeking order to restrain the Corporation from
granting any permission and/or sanction to any plan for development
of the suit property, including demolishing structures standing on the
suit property and/or constructing any building or buildings on the
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suit property. Civil Application No.4814 of 2011 ('First Civil
Application' for short) was heard by this Court and on motion made
by Mr. R.A.Thorat, the learned counsel appearing for the applicant
vide order dated 22nd July, 2014 granted permission to withdraw the
Civil Application with liberty to adopt 'appropriate proceedings'.
Whereafter, in February, 2018, the appellant moved second Civil
Application No.1684 of 2018. Strictly speaking, in substance, prayers
in the second Civil Application were similar, to the prayers made in
the first Civil Application, that to say; restrain Corporation from
granting permission for developing the Suit Plot. To be precise, the
second Civil Application prayer reads as below;
(i) The Municipal Corporation of Greater Mumbai be
directed to withdraw, revoke, cancel the Intimation
of Disapproval (IOD) dated 11th October, 2011 issued
under D.C.Regulation No.33(7) to the respondents
and further be restrained from carrying out any
development work on CS No.6/71 and 7/71, Lower
Parel Division, Senapati Bapat Marg, Worli, Bombay;
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7 It may be noted that the, Second Civil Application
(which is pending till date) came up for consideration on 23 rd
July, 2018 and 27th September, 2018; when at the request of the
applicants, hearing was deferred. Again it came up for
considerati on on 16th October, 2018 and at the request of the
learned counsel for the Corporation, hearing was adjourned to
29th November, 2018. However, on 16th October, 2018, the
learned counsel for the respondent-Corporation, made a
statement that in the, meanwhile, "Corporation will not take
further steps", and hearing was deferred and scheduled on 29 th
November, 2018. The application did not list on 29 th November,
2018, for hearing but listed on 9th July, 2019. On that day,
hearing was adjourned to 22nd July, 2019 and thereafter on 1 st
August, 2019; 6th August, 2019; 21st August, 2019; 11th October,
2019 and 5th December, 2019. The orders passed on these dates,
do not show that the statement made by Corporation's counsel,
on 16th October, 2018, was continued nor the orders imply that
the petitioner sought the extension of statement. Thus, to be
stated that statement made by the Corporation's counsel on 16 th
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October, 2018 was in force and binding on the Corporation till
29th November, 2018 and not thereafter.
8 In the meantime, pending First Appeal, the tenants,
occupying the tenements in chawls, (hereinafter called 'Kamal Patra'
Chawl) formed, Radhakishan Co-operative Housing Society (Proposed)
in March, 2011 and decided to re-develop the Suit Property, through
M/s. Shankla Realtors Private Limited (Respondent No.4).
Improvement Committee of the Municipal Corporation of Greater
Mumbai accepted the proposal of respondent no.4; followed by the
Letter of Intent. May be for some reason, the proposed housing
society of the tenants, appointed M/s. Alamdar Infrastructure Private
Limited (Respondent No.6) as developer. The Municipal Corporation
vide Resolution No. 137 dated 24th November, 2020 approved the
appointment of Respondent No.6 as, 'Developer' in place of Shankala
Realtors Private Limited (Respondent No.4). In February, 2021,
Improvement Committee accepted the proposal of the Respondent
No.6 under the Regulation 33(7) of DCPR 2034; followed by approval
of Technical Committee. On 18th October, 2020, Letter of Intent was
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issued in favour of M/s Alamdar Infrastructure Private Limited; on
25th October, 2021, Chief Fire Officer issued NOC and on 2 nd
December, 2021, IOD was issued. On 3rd December, 2021, structures
on the suit property were demolished and the occupants were given
temporary alternate accommodation under the agreements dated 5 th
October, 2021.
9 Corporation has brought the aforesaid facts on record
supported by requisite development permissions. These permissions
have not been challenged in "appropriate proceedings" although
liberty was granted by this Court. It may also be noted that although
the second Civil Application was filed in February, 2018, it was not
moved by the applicants since then. It seems petitioner chose to
remain silent since after filing second Civil Application. As such, in
absence of any restraint order, Corporation after following the due
procedure, has granted above -stated development permissions.
10 In the back-drop of aforestated facts all of a sudden, on
4th December, 2021, Petitioner filed instant Contempt Petition,
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seeking action against the respondents under the Contempt of Courts
Act, 1971, for disobeying two orders; one dated 30 th January, 1985
passed by the Hon'ble Supreme Court and another order dated 16 th
October, 2018 passed in the Civil Application No.1684 of 2018 in
the subject First Appeal.
11 In so far as the order of the Hon'ble Supreme Court in
SLPs is concerned, it may be stated that petitioner, in paragraph 4(ii)
of Petition has admitted that the SLPs were filed by other lessees and
not by him or his predecessor-in-title. Paragraph 4(iii) reads, as
below;
"iii) The Petitioner states and respectfully submit
that, the Corporation issued Notice u/s. 105B of
B.M.C. Act and an Inquiry was conducted. The Ld.
Enquiry Officer was pleased to direct Petitioner to
vacate land. The Petitioner challenged it by preferring
Appeal in the City Civil Court which was allowed.
Feeling aggrieved Corporation preferred Writ Petition
in High Court which came to be allowed. The order
of Hon'ble High Court was challenged by Co-lessees in
Apex Court by way of S.L.P.'s bearing No.6452, 7142
to 7145 and 10621 of 1985 in the Hon'ble Supreme
Court. All these S.L.P.'s were dismissed."
In consideration of these facts, I hold that the eviction order passed
under Section 105-B of the Act, so far as the suit plot is concerned,
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has attained the finality. Even otherwise, the learned City Court
Judge in Judgment in Suit No.9164 of 1991 (instituted by the
Petitioner) has observed that;
" The adjoining two plot holders have taken the
matter to the Hon'ble Supreme Court against the
order of the High Court of Judicature and those
Appeals (SLP was dismissed by the Hon'ble
Supreme Court on 10th September, 1991)."
(emphasis supplied)
12 For all that reasons, Petitioner's contention that,
development permissions, granted by the Corporation and/or
structures were demolished in defiance of order dated 30 th November,
1985 of the Hon'ble Apex Court, is rejected.
13 As far as alleged breach of, the order dated 16 th October,
2018 passed in Civil Application No.1684 of 2018 is concerned, it
may be stated that on 16th October, 2018, Corporation's advocate,
stated that Corporation shall not take further steps till next date,i.e.,
29th November, 2018. Whereafter, the application came up for
consideration, on seven occasions, i.e., on 9 th July, 2019, 22nd July,
2019, 1st August, 2019, 6th August, 2019, 30th August, 2019, 11th
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October, 2019 and 5th December, 2019. Yet, statement of
Corporation's counsel was not continued nor the orders imply that
Petitioner sought extention of statement. In other words, 'Statement'
of counsel, was operative and binding on Corporation till 29 th
November, 2018. Hence, statement, being not continued, it 'ceased'
to bind the Corporation from and onwards 29 th November, 2018. For
these reasons, Petitioner's contention that Corporation willfully
disobeyed order/statement/assurance dated 16th October, 2018 requires
no consideration. It is rejected.
14 Mr. Mulla, learned counsel for the petitioner, would
largely relied on two counter-affidavits of the Petitioner; one sworn
on 25th January, 2022 and another on 29th January, 2022. Mr. Mulla
contended, that it is implicit from Development Agreement executed
by the Respondent No.6 and LOI, that Corporation as well as
developer, were aware of order of the Hon'ble Supreme Court and
the order dated 16th October, 2018. Yet, in defiance of these orders,
both proceeded to develop the Suit Plot. Mr. Mulla has taken me
through the affidavits, wherefrom it appears or looks like, the
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petitioner has challenged/questioned development permissions, IOD,
LOI. Still and on, if he is aggrieved by the development permissions,
he ought to have adopted "appropriate proceedings", in accordance
with liberty that was sought by him, while withdrawing first Civil
Application. Yet, the petitioner has not adopted, "appropriate
proceedings", and, therefore, issue, relating to legality of
Development Permissions, cannot be considered in the Contempt
Proceedings.
15 For all that reasons, Contempt Petition is dismissed.
(SANDEEP K. SHINDE, J.)
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