Manisha Mahesh Sawant vs M/S. Adhikari Engineering ...
2022 Latest Caselaw 4971 Bom

                               AO(ST)-27909-2019& GROUP-judgment.odt



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                CIVIL APPELLATE JURISDICTION

          APPEAL FROM ORDER (ST.) NO. 27909 OF 2019
                         ALONGWITH
             INTERIM APPLICATION NO. 3107 OF 2020
                         ALONGWITH
             INTERIM APPLICATION NO. 1992 OF 2019


Manisha Mahesh Sawant                    ...Appellant
     Vs.
M/s. Adhikari Engineering
Private Limited and 21 Ors.              ... Respondents




                            WITH
           APPEAL FROM ORDER (ST.) NO. 27910 OF 2019
                         ALONGWITH
             INTERIM APPLICATION NO. 3108 OF 2020
                        ALONGWWITH
             INTERIM APPLICATION NO. 1991 OF 2019


Harshad Ravindra Dalvi                        ....Appellant
     V/s.
M/s. Adhikari Engineering Private
Limited and 21 Ors.                           ...Respondents




                            WITH
           APPEAL FROM ORDER (ST.) NO. 27932 OF 2019
                         ALONGWITH
             INTERIM APPLICATION NO. 3106 OF 2020
                         ALONGWITH

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                                   AO(ST)-27909-2019& GROUP-judgment.odt


          INTERIM APPLICATION NO. 1994 OF 2019


Shraddha Surendra Shirodkar                        ....Appellant
     V/s.
M/s. Adhikari Engineering Private
Limited and 21 Ors.                                ....Respondents


                              ...

Mr. Pradeep Thorat i/by. Mr. Sameer K. Sawant, for the Appellant.

Mr. Shakeeb Shaikh a/w. Genevieve D'souza i/by. Diamondwala & Co., Advocate for respondent no.1.

CORAM : SANDEEP K. SHINDE J.

Order Reserved on : 29th April, 2022.

Order Pronounced on : 26th May, 2022.

P.C. :

1. Heard learned counsel for the parties.

2 These appeals are taken up for hearing together,

since the facts therein are substantially common.

3          The dispute, arose from Slum Rehabilitation

Scheme    sought,   to   be   implemented     by    M/s.   Adhikari


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Engineering Company Private Limited ("Developer-Defendant

No.2" for short) and in particular relates to, whether suit

structures, Room Nos.18, 19 and 21 at Samarth Nagar,

Bhandup, Mumbai-400 078 ("suit premises" for short),

occupied by the plaintiffs are falling in the alignment of

rehabilitation building, in respect of which Slum Rehabilitation

Authority ('SRA' for short) has issued plinth certifcate dated

11th January, 2019. Necessarily, thus, it is 'Boundary Dispute',

amenable to jurisdiction of Civil Court.

4 Appellants/plaintiffs, instituted Suit (St.) Nos.

8104, 8105 and 8106 of 2019 in the City Civil Court at Mumbai,

seeking following reliefs;

(i) Development agreement dated 30th December,

2014 inter-lia, executed by Promoters of Sainath Co-

operative Housing Society, then proposed,

appointing M/s. Adhikari Engineering Private Ltd.

(Developer-Defendant No.2) is illegal, unlawful and

not binding on them;

      (ii)   The   consent-cum-affdavit     and   tripartite

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agreement, dated 19th July, 2015 executed with

Promoters of Ganpat Mali Co-operative Housing

Society, then proposed, is invalid, null, void and not

binding on them;

(iii) Declare, that the appointment of the

defendant no.1 as Developer, to develop plot of land

bearing CTS No.231/A(Part) admeasuring 1100

sq.mtrs. is unlawful, bad in law and be set aside;

(iv) Direct, defendants no.1 to 3 to conduct the

joint survey with members of Sainath Co-operative

Housing Society (Proposed) to measure, demarcate

and fx the boundaries of the Slum Scheme carried

out by the defendant no.1 in the name and style of

Ganpat Mali SRA Co-operative Housing Society Ltd,

on plot bearing CTS No.231-A(Part), 234, 234(1-14),

235, 235(1-6), 236(1-7), 1331, 1331(1-10) of

Village-Kanjur, Taluka-Kurla, Bhandup (West) and

submit report to the Court.

5 Pending suit, appellants/plaintiffs, sought an order

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to injunct defendant nos.1 to 4 from demolishing and/or

dispossessing the appellant from the suit premises situate at

Sainath CHS on plot of land Survey No.105 at Village: Kanjur,

Taluka: Kurla, Bombay 400078, pursuant to notice dated 7 th

March 2019, issued under Sections 33 and 38 of the Slums Act

issued by the respondent-Slum Rehabilitation Authority.

6 The learned trial Judge vide orders dated 30th

September, 2019 refused, interim injunction, pending suit.

7 Thus, these orders are under challenge in these

appeals fled under Order 43 Rule 1(r) of the Code of Civil

Procedure, 1908.

8 Briefly stated facts of the case are as under;

(i) Sainath Co-operative Housing Society (Proposed),

("Sainath" for short), vide Deed of Conveyance dated

21st November, 1969 executed through its

Promoters, purchased Land Survey No.105, Hissa

No.1 (Part) admeasuring 920.25 sq.mtrs, with

structures standing thereon. Later, vide deed of

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rectifcation executed on 11th March, 1991, Deed of

Conveyance dated 21st November, 1969 was

rectifed, to the extent of area of the land and its CTS

number. Whereupon, Sainath CHS (Proposed) would

claim to be, owner of Survey No.105, Hissa No.1

(Part), corresponding CTS No.231/A admeasuring

1100 sq.mtrs.

(ii) On 19th June, 1996, Notifcation under Section 4

of the Maharashtra Slum Areas (Improvement,

Clearance and Redevelopment) Act, 1971 ('Slum Act'

for short) was issued in respect of CTS No.231/A

admeasuring 1100 sq.mtrs.

(iii) In March, 1997, Additional Collector Collector

(Encroachment) and Controller of Slums, issued a

site plan and list of hutment dwellers situated at CTS

No.231/A, a plot owned by Sainath; who certifed

that,

"area of 1100 sqmtrs in CTS No. 231 of Village: Kanjur Taluka: Kurla is notifed as slum 4/1 of the said Act vide Notifcation dated 25th June 1996 and that there are 21 structures on the said slum out of which 15

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structures are census/protected structures and therefore eligible for alternate accommodation. The list of such eligible hutment dwellers along with other relevant details are enclosed herewith."

(iv). Suit premises, viz. 18, 19 and 21, occupied

by the appellants/plaintiffs were shown in the said site

plan at Serial Numbers 18 to 21. (The plan is at page

117 of the paper-book).

. Thus, prima facie, structures occupied by the

appellants/plaintiffs were within the boundary of land,

CTS No. 231/A owned by, Sainath.

(v) On 24th December 2014 vide registered sale

deed, M/s. Adhikari Engineering Private Limited,

Developer-Respondent No.1, purchased a plot of land

admeasuring 2418 sq.mtrs. bearing Survey Nos.105,

(Hissa No.1/1), CTS No. 231-A(Part), 234, 234(1 to

14), 235, 235 (1 to 6), 236, 236(1 to 7), 1331, 1331(1

to 10) at Village-Kanjur with chawl-structures known

as Ganpat Mali Compound, Pednekar Chawl, Sainath

Chawl, more particularly described therein, in all, 124

hutments/structures, which is adjacent and abutting

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the plot owned by Sainath.

(vi) Although, the deed of conveyance dated 24 th

December, 2014 makes reference to, particulars of

tenants-occupants of 124 structures in Annexure 3

appended thereto, developer did not produce the

Annexure 3 to verify and to ascertain, whether such

124 hutments included the structures occupied by the

appellants-plaintiffs.

(vii) Hutment dwellers on the part, of plot purchased

by Developer, have formed housing society called

'Ganpat Mali CHS (Proposed)'.

(viii) Developer, proposed composite development of

plot owned by Sainath, which admeasures 1100

sq.mtrs. and plot occupied by members of Ganpat Mali

Co-operative Housing Society (Proposed).

(ix) Whereafter, pursuant to resolution passed in

Special General Body Meeting of Ganpat Mali Co-

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operative Housing Society (Proposed), held on 28th

December, 2014, members of both the societies i.e.

Ganpat Mali and Sainath, allegedly, appointed M/s.

Adhikari Engineering Private Limited, as a Developer;

(x) Following that, on 30th December, 2014

development agreement was executed by the

promoters of both the proposed societies, by which

M/s. Adhikari Engineering Private Limited was

appointed, as Developer to develop plot admeasuring

3402.20 sq.mtrs.

(ix) In terms, of the Development Agreement,

Developer had agreed to develop plot admeasuring 3402

sq.mtrs and offered alternate accommodations to the

members (slum dwellers) of both the Societies, free of

cost in Slum Rehabilitation Scheme, which was to be

implemented, as per Development Control Regulation

No.33.10.

      (x)     In August, 2014, out of 136 slum dwellers, 99

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dwellers had given consent in writing, to proposed Slum

Rehabilitation Scheme.

(xi) On 1st October, 2015, Slum Rehabilitation

Authority certifed that 136 slum dwellers were

occupying area admeasuring 3402.25 sq.mtrs.

(xii) On 2nd August, 2016, twenty-one members of

Sainath Society, in its meeting, resolved to revoke their

consent and withdraw from Composite Development

Scheme, undertaken by M/s. Adhikari Engineering

Private Limited; whereafter, Secretary of Sainath

Society, informed the Developer, decision of withdrawal

and cancellation of tripartite agreements and the

declaration dated 19th July, 1995 executed by its

members including the appellant herein and accordingly

cancelled the Development Agreement dated 30 th

December, 2014.

(xiii) Appellants-plaintiffs are members of 'Sainath Co-

operative Housing Society (Proposed).

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AO(ST)-27909-2019& GROUP-judgment.odt

(xiv) On 9th November, 2016, Tehsildar and Survey

Offcer visited site to conduct survey but could not carry

out, due to stern oppose by 56, slum dwellers. As a

result, Slum Re-development Authority, vide

communication dated 25th January, 2017 intimated

Executive Engineer, Slum Rehabilitation Authority, that,

although the Slum Rehabilitation Scheme was to be

implemented on land admeasuring 3402.25 sq.mtrs. for

re-habilitation of 136 slum dwellers but since 56 slum

dwellers have opposed the survey, it could conduct the

survey of 80 structures only. As a consequence, Slum

Authority, certifed that only 80 slum dwellers could be

rehabilitated, occupying area admeasuring 1248

sq.mtrs, which includes suit premises 18, 19 and 21

occupied by the appellants-plaintiffs.

9 Herein, although SRA drew the list of eighty slum

dwellers, occupying land admeasuring 1248 sq.mtrs., dispute is

whether structures/huts occupied by plaintiffs fall within the

boundary of plot, sought to be developed by defendant no.1- Shivgan

AO(ST)-27909-2019& GROUP-judgment.odt

Developer. Primary evaluation of evidence, indeed shows some

part of CTS No.231-A, was purchased by Sainath Society, as well as,

by Developer, a fact which is discernible, from their respective sale-

deeds. However, their plots have not been demarcated by the

Revenue Authorities. Infact, after notifying Plot No.231-A,

admeasuring 1100 sq.mtrs, owned by Sainath Co-operative Society

under Section 4 of the Slum Act, in March 1997, Additional

Collector, Encroachment and Controller, Slums, issued site plan of

hutment dwellers thereon, which includes suit premises 18, 19 and

21 occupied by the respective appellants. Therefore, once

Competent Authority issued a site plan in respect of Plot No.231-A,

admeasuring 1100 sq.mtrs including therein the suit premises,

then, how these premises could be excluded therefrom and would

form plot, sought to be developed by the Developer under the Slum

Rehabilitation Scheme. Thus, dispute is, whether suit premises are

falling with the alignment of Rehabilitation building for which,

plinth Certifcate has been issued by the Slum Rehabilitation

Planning Authority. It is a matter of record that, after scaling down

and revising the list of slum dwellers from 136 to 80, Survey Offcer

although, visited the site for measuring and demarcating the land

on which scheme is to be implemented, however, he could not carry Shivgan

AO(ST)-27909-2019& GROUP-judgment.odt

out the survey and demarcate the land due to objection taken by the

members of Sainath Society.

10 Thus, from the facts stated above, it is to be stated, that

although boundary dispute was apparent, authorities, without frst

measuring and demarcating the land, on which Slum Rehabilitation

Scheme was to be implemented, issued fnal Annexure-II on 13 th

January, 2017, whereby appellants/plaintiffs were held ineligible for

free alternate accommodation, for want of survey tabulation and

proof that, structures were existing, prior to 1 st January, 2000.

Thus, appellants were held ineligible for want of survey, without

frst ascertaining whether suit premises fall on plot of land,

purchased by Developer or by Sainath. The issue needs to be

resolved. Thus, in consideration of the facts of the case it would be

appropriate, if Revenue Authorities are directed to measure and

demarcate the boundaries of plots, purchased by Sainath Society,

vide Deed of Conveyance dated 21 st November, 1969 as rectifed and

plot purchased by Developer, vide sale-deed dated 24 th December,

2014 in accordance with law, and at the cost of Developer.

11 In the backdrop of the aforesaid facts, it is appellant's Shivgan

AO(ST)-27909-2019& GROUP-judgment.odt

case that, in view of resolution passed by Sainath Society,

withdrawing consent and revoking appointment of defendant no.1

as a developer and further since structures/huts occupied by them

do not fall in alignment of Rehabilitation Building, they cannot be

forced to be a part of the Rehabilitation Scheme sought to be

implemented by the Developer-Defendant No.1. In other words, it is

appellant's case that the Developer in connivance with the

Rehabilitation Authority without conducting the survey and

demarcation of the plot illegally shown their structures within the

boundary and alignment of the rehabilitation building for which

SRA has issued plinth certifcate dated 11th January, 2019.

12. In my view, once plots are measured and demarcated,

controversy in respect of 'boundary line' would get resolved.

Thereafter, other issues as, whether Development Agreement dated

30th December, 2014 binds plaintiffs and/or whether consent-cum-

affdavit and tripartite agreements dated 19 th July 2015, bind the

plaintiffs, could be answered independently by the trial Court, on

merits, if Survey and demarcation of plots, show suit premises do fall

within the boundary of plot sought to be developed by the Developer

under Development Control Regulations 33.10, in the fresh Motions, Shivgan

AO(ST)-27909-2019& GROUP-judgment.odt

if moved by the plaintiffs. In the facts of the case, respondent no.2-

Developer shall move, appropriate application for measuring and

demarcating the lands, as ordered, within two weeks from the date

on which this order is uploaded on the website. Whereafter

concerned authority shall measure and demarcate the land, as

ordered, expeditiously and preferably on/or before 31st July, 2022 in

accordance with law at the cost of Developer. As such, till then,

notice dated 7th March, 2019 issued by the Slum Rehabilitation

Authority (respondent no.2) under Sections 33/38 of the Slum Act,

shall not be executed. Having regard to the facts of the case and

since monsoon is approaching fast, in case in survey, it is found that

suit premises are falling within the boundary line of rehabilitation

building for which plinth certifcate has been issued, the Notice

dated 7th March, 2019 issued under Sections 33/38 of the Slum Act,

shall not be implemented for a period of 30 days. However, in case,

survey reveals that suit premises do not fall within the boundary

line of rehabilitation building, necessary consequence shall follow, at

the cost of Developer. As such, without addressing the other issues

on merits, canvassed in the Appeal, Appeals are partly allowed and

disposed of on the limited issue, as discussed above.

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AO(ST)-27909-2019& GROUP-judgment.odt

13. With disposal of the Appeals, Interim Applications fled

therein, do not survive. The same also stand disposed of.

NEETA
SHAILESH
SAWANT                                                  (SANDEEP K. SHINDE, J.)
Digitally signed by
NEETA SHAILESH
SAWANT
Date: 2022.05.26
17:57:13 +0530




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