Bombay High Court
M/S. Patel Constuction Company vs Himanshu Dearkadas Ruparelia And Ors on 7 May, 2025
2025:BHC-AS:20922
FA 27-2014.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.27 OF 2014
M/s. Patel Construction Company, ]
Having its Office at 303/3040, ]
Gul Mohar Complex, Goregaon (West), ]
Mumbai - 400 063. ] ...Appellant.
Versus
1) Himanshu Dwarkadas Ruparelia, ]
Adult, Hindu, aged about 45 years ]
Residing at Neel Tarang, Flat No. ]
210, Veer Sawarkar Marg, Mahim, ]
Mumbai-400 016. ]
2) Slum Rehabilitation Authority, ]
A Statutory Body having its Office ]
At 5th Floor, MHADA Building, ]
Kala Nagar, Bandra (East) ]
Mumbai-400 051. ]
3) Parvati Nagar SRA Co-operative ]
Grihanirman Sanstha Limited, ]
C.T.S. No. 2, 2/1 to 4, 3, 4/1 to 15, ]
5, 5/1 to 8, 6, 6/ to 288, 6/296 to 494, ]
7, 7/1 to 24 of Village Malad, ]
Having their address at ]
Mahadevbhai Desai Road, ]
Kandivali (E), Mumbai-400 101. ]
4) The State of Maharashtra. ]
(Through Collector of Mumbai ]
Suburban District), Administrative Building, ]
Near Chetna College, ]
Bandra (East), Mumbai-400 051 ]
5) Harsha Shailendra Reshamwala, ]
Aged 54 years, ]
Residing at Sethia Building, 12, ]
Dr. D.D. Sathe Marg, ]
Opera House, Mumbai-400 004. ]
6) Kashmira Vijay Contractor, ]
Aged 49 years, Residing at 701 ]
Krishna Apartment, Jain Derasar ]
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Mandap, Near Podar School, ]
Santacruz (West), Mumbai-400 054 ]
7) Mr. Dhanesh Dwarkadas Ruparelia ]
Residing at 180, Irchestar Road, ]
Rushen Northamtonshire NN 10900 ]
U.K. ] ...Respondents.
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Mr. Rohan Cama and Mr. Nilesh Gala i/b Bharti Laskar for the Appellant.
Mr. Atul Damle, Senior Advocate along with Mr. R. M. Haridas i/b Mr. Sachin
Dhakephalkar for the Respondent No. 1.
Mr. Jagdish G. Aradwad - Reddy and Ms. Dipti Thorat for Respondent No. 2.
Mr. Amogh Singh, Mr. Santosh Pathak and Mr. Rahul Arora i/b Law Origin for
the Respondent No.3.
Ms. Padma Chinta and Mr. Harshad Sathe i/b Mr. Harshad Bhadbhade for the
Respondent No. 5.
Mr. Rubin Vakil and Ms. Isha Thakur i/b Vimadalal & Co., for Respondent No. 6.
Mr. A. R. Patil, AGP for the Respondent-State.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : March 21, 2025
Pronounced on : May 7, 2025
JUDGMENT:
1. The First Appeal preferred by the original Defendant No.2
impugns the judgment dated 25 th September, 2013 passed by the City
Civil Court in L.C.Suit No.1907 of 2008 partly decreeing the suit
declaring the sanctions and permissions granted by the Defendant
no.1-SRA for development of the suit plot as illegal, bad in law and
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restraining the Defendant Nos.2-the owner/developer and Defendant
No.3-the slum dwellers society from carrying out any development
activities pursuant to the slum rehabilitation scheme including the
Letter of Intent (LOI) dated 20th July, 2006 on the said plot. For sake of
convenience, the parties are referred to by their status before the
Trial Court.
PLEADINGS:
2. The case of the Plaintiff was that the Plaintiff's grand-father
and thereafter his father-Dwarkadas Jadhavji Nathubhai Ruparelia
was the lessee of F.E. Dinshaw Charities in respect of land
admeasuring 33,982 square yards bearing Survey No.112 (Part),
corresponding to CTS No.2, 2/1 to 4, 3, 4, 4/1 to 5, 5, 5/1 to 8, 6, 6/1 to
63 6/3, 6/82 to 128, 6/143 to 202, 6/211 to 288, 6/296 to 324 and 495,
7, 7/1 to 24 initially under registered lease-deed dated 6 th May, 1948
having term of four years and after expiry of the term, the Trustees
continued to accept rent till the year 1985. There was fixation of
standard rent vide judgment and order dated 24 th April, 1958 in Civil
Appeal No.238 of 1954 in respect of the suit property and other
properties.
3. The Plaintiff's father Dwarkadas expired in the year 1988,
survived by his wife Pushpa as legatee under registered Will dated
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13th November, 1979 and in 2007, Pushpa expired leaving behind
Plaintiff as legatee under her registered Will dated 20 th November,
1989 and in any event as one of the legal heirs of the deceased
Pushpa.
4. The tender of rent by Pushpa to the Trustees by her Advocate's
letter dated 14th December, 1989 was not accepted and the Trustees
sought execution of an indemnity bond. The Plaintiff's tenancy was
not terminated and is therefore subsisting and no proceedings were
initiated for recovery of possession of the suit plot. Certain portions
of the land were sub-tenanted by the plaintiff's predecessors to
various tenants and is subject matter of proceedings before Small
Causes Court including RAE & R Suit No.454/1363 of 1992 and RAE & R
Suit No.1362 of 1992 for eviction. There was an offer by F.E. Dinshaw
Charities vide letter dated 2nd June, 1992 for purchase of certain
portion of leased land.
5. In the year 1942, out of the total land leased, about 3508.770
sqr. mtrs of the suit plot was requisitioned by the Collector on behalf
of the defence department, which was de-requistioned by order dated
27th February, 1987 and the plaintiff's predecessors was called upon
to take possession. As the land was fully encroached, the plaintiff's
predecessors requested the Collector to return vacant possession for
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which Writ Petition No.1754 of 1996 was filed against the defence
department and by order dated 24th September, 1996, the High Court
directed the authorities to handover the vacant and peaceful
possession of the land. The said portion of land is forming part of the
suit land on which the Defendant No.1 have sanctioned the LOI.
6. In the year 1999, some of the hutment dwellers filed Writ
Petition No.1930 of 1999 challenging the order dated 24th September,
1996 directing removal of encroachment and by order dated 28 th
August, 2001, the High Court directed all parties to maintain status
quo with respect to the property. While obtaining LOI, the order of
status quo was not disclosed to SRA thus evidencing fraud.
7. Without the knowledge or consent of plaintiff's predecessors-
in-title, F.E. Dinshaw Charities executed Conveyance Deed dated 15th
April, 1995 of portion of land admeasuring 18490 sqr.mtrs in favour of
M/s Rado Construction Company which conveyance was subject to the
lease hold rights of the plaintiff as lessee in possession of the suit
plot. M/s. Rado Construction Company, was party to the Writ Petition
No 1930 of 1999 filed by the hutment dwellers which was affirmed by
one Nalin Patel who is conducting Defendant No.2 and they were
aware of status quo order. By Conveyance Deed dated 25 th May,
2007, M/s. Rado Construction Company sold the suit property to
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Defendant No.2 without mentioning the lease hold rights of Plaintiff
which evidences fraud.
8. The formation of proposed society of slum-dwellers and the
implementation of slum rehabilitation project on the suit plot was
objected by Pushpa- Plaintiff's mother and Writ Petition No.7385 of
2005 was filed for direction to SRA to consider her objections, which
was allowed by order dated 17 th November, 2005. Though the
hearing was fixed on 22nd June, 2006, no oral hearing was given and
she was informed that the order will be communicated. Without
passing any order, LOI came to be issued in the month of July, 2006 in
favour of the Defendant Nos.2 and 3. Writ Petition No 1978 of 2006
was filed by one Ashish Gupta challenging the grant of LOI and by
order dated 4th August, 2006, the High Court directed opportunity of
hearing to be given to all the parties.
9. The bar of jurisdiction under Section 42 of The Maharashtra
Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971
[for short "Slum Act"] was not attracted as Defendant No.1 acted in
violation of orders passed in Writ Petition No.7385 of 2005, Writ
Petition No.1978 of 2006 and Writ Petition No 1754 of 1996 and the
action is malafide and ultra vires the provisions of Slum Act.
Defendant No.1 does not have authority to grant any sanction for
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development on private land without consent of the lessee and action
impugned in the present suit is the result of fraud practiced by the
Defendants and therefore, claim would lie before the Civil Court.
10. The suit came to be resisted by Defendant No.2 raising
objection to the jurisdiction as well as to maintainability. It was
contended that Pushpa was not lessee of the suit property and had no
right, title and interest in the suit property. The lease expired in the
year 1967 by efflux of time and was not renewed. The Wills of
Dwarkadas or Pushpa are not probated and do not have legal effect.
The objections raised by Pushpa were considered by SRA and by order
dated 14th July, 2006, SRA rejected the representation on the ground
that Pushpa has failed to prove any right in the suit property, if any, as
an owner and or lease holder of the suit land which is required to be
established before the Competent Authority, which was not done.
11. The Civil Court does not have jurisdiction in view of Section 42
of Slum Act. The LOI and Annexure-II issued in favour of the
Defendant No.2 were already the subject matter of challenge before
the High Court and held to be valid and legal after the requisite
consent of slum-dwellers has been obtained.
12. By notification dated 13th October, 1977, the land property is
declared as "slum" under the provisions of Slum Act. The Defendant
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No.2 has been appointed as developer with consent of more than 70%
of the eligible slum-dwellers. After carrying out the requisite
compliance, Annexure-II and LOI dated 20 th July, 2006 were issued in
favour of the Defendant Nos.2 and 3, which was challenged by some
slum-dwellers and was ultimately upheld. It was contended that the
order of status quo dated 28th August, 2001 is not in respect of the
entire suit property but only part of the suit property i.e. 3508.70 sqr.
mtrs. As the status quo order was passed at the instance of slum-
dwellers who themselves entered into an agreement for rehabilitation
with Defendant No.2, order of status quo as far as LOI is concerned has
no bearing.
13. The Defendant Nos.5 and 6 who are the other legal heirs of the
deceased Dwarkadas Jadhavji also filed their written statement and
claimed equal rights in the suit property.
ISSUES AND FINDINGS OF TRIAL COURT:
14. Evidence was led by Plaintiff, Defendant No.2 and Defendant
Nos 5. the Trial Court framed and answered the following issues :
Sr. Issues. Findings.
1. Whether suit is maintainable. Deleted.
2. Whether the suit is in limitation. Does not survive
3. Does Plaintiff prove that there is a cause to file this Does not survive.
suit ?
4. Does Plaintiff prove that they have any right title or In the affirmative
interest in the suit property?
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5. Whether this court has jurisdiction to try the Suit In the Negative
unless the plaintiff obtain the declaration from the
competent authority that they are Statutory tenants
in the suit property.
6. Whether the suit is barred by principle of res-judicata In the negative.
particularly in context of of reliefs sought in prayer [c]
of the plaint.
7. Does plaintiff prove that the Defendant obtained the In the affirmative.
order from the defendant no.1 practicing fraud as
alleged ?
8. Does plaintiff prove that defendant no.1 has In the affirmative.
transgressed their power while sanctioning of
Annexure II and letter of intent in favour of Defendant
no.2.
9. Whether the plaintiff is entitled for any of the reliefs In the Affirmative.
claimed.
10. Whether the defendant no.2 is entitled for In the negative.
compensatory cost.
15. The Trial Court did not answer the issue of maintainability as the
same was deleted by order of 26th June, 2011. The Trial Court decided
that the status of Plaintiff was of tenant holding over and his tenancy
is subsisting by noting that even after the expiry of lease period on
30th April, 1952, the Plaintiff's pre-decessors continued to pay rent till
the year 1985 and was entitled to be protected under Section 116 of
Transfer of Property Act. The Trial Court noted that M/s Rado Con-
struction Company was aware of the tenancy rights of Dwarkadas and
the tenancy has not been terminated and thus there was no require-
ment of seeking declaration to that effect as the suit has been filed by
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the Plaintiff assuming to be lessee of suit property. The Trial Court
held that the right of ownership or lease hold right in the property can
be determined by the Civil Court.
16. On the legality of sanction of slum rehabilitation scheme by
SRA, the Trial Court held that as lease hold rights of Pushpa contin-
ued, by surpassing the lease hold rights of Plaintiff, the Defendant
No.1-SRA and Defendant No.2 are not entitled to implement the slum
scheme over the suit property. It held that SRA without any compe-
tency rejected Pushpa's representation and held that SRA and Defen-
dant No.2 acted in collusion to sanction slum rehabilitation scheme by
defeating leasehold rights of the Plaintiff's predecessor. It further
held that as High Court has issued order of status quo, the injunction
can be granted against carrying out any development activities on the
suit plot.
SUBMISSIONS:
17. Mr. Cama, Learned Counsel appearing for the Appellant has
taken this Court through the pleadings in plaint and would submit
that bar of jurisdiction under Section 42 of Slum Act was pleaded to
not be applicable on the ground of fraud based on status quo order,
the absence of recognition of lease hold rights of Plaintiff's predeces-
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sors in deed of conveyance between executed between M/s Rado
Construction Company and Defendant No.2.
18. He submits that the slum notification was issued on 30 th Sep-
tember, 1977 and on 25th February, 1987, the Collector passed an or-
der derequisitioning land admeasuring 3508.70 sqr.mtrs. addressed
to Dwarkadas, which property was Survey No 70(pt), which has noth-
ing to do with suit property, which is survey No.112 (part). He would
further point out to the cross examination of Maintenance Surveyor
admitting that he does not have any record to show that Survey
No.112 was previously Survey No.70. He would submit that in a previ-
ous suit filed by slum dwellers challenging the sanction of slum
scheme, there is specific reference of Survey No.112, which shows
that slum scheme is being implemented on Survey No.112 and not
Survey No.70. He submits that the order of status quo, even if ac-
cepted, is in respect of Survey No. 70(part), and there is no question of
fraud by suppressing the order of status quo. He submits that in any
case the order of status quo has to be read in light of the relief which
was sought in the writ petition and would mean stay on the removal
of encroachment.
19. He would further submit that the plaintiff claims his rights
through the un-probated Wills of Dwarkadas and Pushpa. He has
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taken this Court through the communications between Pushpa and
F.E. Dinshaw Charities to contend that request of Pushpa to be ac-
cepted as tenant was to be considered and was not accepted. He has
taken this Court through the recitals in the conveyance Deed to show
the recitals about the tenancy of Pushpa not being accepted He
would submit that the conveyance contains a recital about the status
quo order passed by the High Court. He submits that in view thereof,
one of the allegations of fraud was that the conveyance between De-
fendant No.2 and M/s Rado Construction Company did not refer to
the leasehold rights of Pushpa is factually not established. He would
further submit that the admitted position is that the lease was exist-
ing only till the year 1985 and no rent was paid thereafter and there-
fore the status of the plaintiff's predecessor as also of the plaintiff
would be tenant at sufferance who is only a trespasser.
20. He would submit that the objection to slum scheme was raised
by Pushpa claiming to be a lease-holder of the said property and
showing willingness to execute the slum rehabilitation scheme. He
submits that objection of Pushpa was considered by SRA and by order
dated 14th July, 2006, the SRA held that the authorities are not com-
petent to go into the issue of ownership title or to make correction in
the property card and the name of Pushpa is not included in the own-
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ership title and therefore, there is no merit in the objection and re-
jected the representation. He submits that the said order was not
challenged by Pushpa either before the High Power Committee or the
High Court and instead the present suit came to be filed challenging
the Annexure II and the LOI. He submits that in view of the findings of
SRA, it was necessary for Plaintiff to seek declaration of tenancy be-
fore Small Causes Court which was not done. He submits that the
challenge to LOI without obtaining declaration of tenancy is not main-
tainable.
21. He would further submit that an application came to be filed un-
der Section 9A of CPC raising issue of jurisdiction and maintainability
which came to be rejected and was carried to the High Court which
granted stay to the impugned order by order dated 22 nd March, 2012.
He submits that the stay order would revive the objection of jurisdic-
tion and therefore the same was required to be framed and decided.
22. He would submit that even accepting the tenancy of Plaintiff,
even the tenant cannot question the slum scheme and the right is re-
stricted to money claim. He submits that considering the statutory
scheme of Slum Act, the only right available to the owner is to submit
a proposal to SRA for implementing the slum scheme and once the
property is notified as slum, the same cannot be questioned even by
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the owner of property. He submits that right of lessee cannot be
higher than that of the owner.
23. He would further submit that in the present case, the Plaintiff
has mounted a challenge to the slum scheme without seeking any dec-
laration of title. The rights of Plaintiff as a lessee of the said property
was itself objected to and that is the reason why SRA had declined to
go into the right of Plaintiff while adjudicating objections to the slum
scheme. He submits that the Trial Court proceeded to grant a decla-
ration of leasehold rights by usurping the jurisdiction of Small Causes
Court. In support of his submissions he relies upon following deci-
sions :
State of Maharashtra v. Abdul Sattar Haji Usman1 ;
Pant Nagar Mhatma Phule CHS Ltd. v. State of Maharashtra 2 ;
Lokhandwala Infrastructure Pvt. Ltd v. Om Dattaji Rahiwasi Seva
Sangh3 ;
Rajan Garg, Resolution Professional of Truly Creative Developers
pvt. Ltd v. CEO, SRA4 ;
Deena pramod Balodota v. State of Maharashtra5 ;
Veekaylal Investment vs. State of Maharashtra6 ;
Lullu Vas v. State of Maharashtra7 ;
Anatula Sudhakar v. P.Buchi Reddy8 ;
R. V. Bhupal Prasad v. State of A.P.9
1 2017 SCC OnLine Bom 3951.
2 2014 SCC OnLine Bom 1945.
3 [2011] 4 Mh.LJ 216.
4 2024 SSC OnLine Bom 1060.
5 2022 SCC Online Bom 5102.
6 AIR OnLine 2019 Bom 3208.
7 (2019) 9 SCC 175.
8 [2008] 4 SCC 594.
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Pant Nagar Mhatma Phule CHS Ltd. v. State of Maharashtra 10;
Lokhandawala Infrastructure Pvt. Ltd. v. Dhobighat Compound
Rahiwasi Seva Sangh11.
24. Per Contra Mr. Damle, learned Senior Advocate appearing for
Plaintiff would submit that there are 2 aspects of the matter, firstly,
that there is no lease existing in favour of the Plaintiff, and secondly
bar under Section 42 of the Slum Act. Taking the first submission on
the existence of lease, he submits that by judgment of 21 st June 1957
passed in CRA No.990 of 1956 instituted by the Plaintiff's grandfather,
the standard rent was fixed. He submits that therefore Rent Act was
applicable and without any notice of termination, conveyance has
been executed in favour of M/s. Rado Construction Company. He
submits that as the Plaintiff's grandfather was held to be tenant of
the premises, argument of non payment of rent does not survive. He
would further submit that in the conveyance executed between the
F.E. Dinshaw Charities and and Rado Construction Company , there is
specific recital that Plaintiff's grandfather and father were accepted
as tenant which continued even after the expiry of lease and unless
tenancy is terminated, rights continue. He submits that there is no
concept of ceasing to be a tenant once the status as tenant has been
upheld. He submits that it was not necessary for the Trial Court to go
9 [1995] 5 SCC 698.
10 Bom HC C.A. (Review) No. 2/2015 dtd. 27-4-2015.
11 Bom HC OOCJ Notice of Motion Nil of 2011 in Suit (Ld.) No. 813/2011 dtd. 5-4-2011.
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into the status of the Plaintiff in view of the material on record to
demonstrate acceptance of Plaintiff's predecessor's tenancy.
25. He would further submit that by order of 24 th September 1996
passed in Writ Petition No.1754 of 1996 filed by the Plaintiff's mother
seeking vacant possession of the property, the High Court has
accepted the Plaintiff's mother's right and has directed handing over
of the possession. He submits that therefore the right has clearly
been established and there was no requirement of seeking
declaration of leasehold rights. He would further submit that M/s
Rado Construction Company had also filed Petition against the order
dated 24th September, 1996, which shows that status quo was in
respect of the portion of suit property.
26. He would further submit that in Writ Petition No.1978 of 2006
filed by one of the slum dwellers, the Division Bench has held that
there is total non application of mind by Respondent No.2-Authorities
therein while sanctioning Annexure-II. He submits that Division Bench
remanded the matter to the Respondent No.2 to decide who has 70%
support in the slum scheme and Annexure-II was directed to be
revisited and therefore no help can be derived from the finalisation of
Annexure-II. He would further submit that by order of 14 th July 2006,
SRA, while considering the objections raised by the Plaintiff's mother
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to the sanctioning of slum scheme, has not adjudicated the objections
on the ground of competency to decide lease hold rights.
27. On the aspect of bar under Section 42 of Slum Act, he submits
that the Plaintiff claims a right in the land on which slum scheme is
being implemented and therefore his grievance cannot be adjudicated
by SRA. He submits that Plaintiff is not challenging the LoI but that LoI
cannot be issued without consent of Plaintiff. He would further submit
that the Trial Court has framed specific issue as regards right, title and
interest of the Plaintiff in the suit property and as an injunction was
sought, the Trial Court was competent to go into the question of title.
28. He would further submit that the order of status quo was not
sought to be modified by the Appellant. He would submit that
objection raised by the Appellant is that the remedy of raising
objection to slum scheme has already been exhausted has been dealt
with by the Trial Court by holding that Civil Court can determine the
right of ownership or leasehold rights in the property. He would
further submit that the Trial Court held that right of the Plaintiff as
lessee in the suit property is still existing even though same is not
exclusive.
29. He would further submit that the issue of jurisdiction will have
to be decided in the present proceedings as Civil Court did not decide
the same in view of stay granted. He has taken this Court through the
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averments in plaint and would submit that the bar of jurisdiction will
not apply in view of the clear pleading of fraud set out in plaint. He
submits that the proposed society is party to the suit and would
therefore be bound by the outcome of proceedings. He relies upon
following decisions :
Om Shri Sai Developers v. State of Maharashtra12 ;
Qari Mohammad Zakir Hussain v. MCGM13 ;
Abdul Sattar Hazi Usman v. Arch Bishop of Bombay 14 ;
Ashok B. Nigudkar v. Sudhadra P. Nirgudkar15 .
30. In rejoinder, Mr. Cama submits that agreement specifically
recites that Plaintiff's mother was not recognised as tenant. He
submits that as a lessee, the only right which the Plaintiff would have
would be money claim either against the lessor or against the State
Government in event acquisition takes place. He submits that Plaintiff
claiming to be a tenant has no higher rights than that of a owner. He
submits that argument of Mr. Damle that there is no need to seek
declaration of tenancy cannot be accepted as the title itself is in
dispute.
12 2010(4) All.M.R. 198.
13 2002(2) Bom CR 98.
14 2016(6) Bom CR 416.
15 2013(4) All MR 753.
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POINTS FOR CONSIDERATION:
(1) Whether in absence of seeking relief of declaration of
Plaintiff's tenancy title, the validity of the slum rehabilitation scheme
could have been examined at the instance of the Plaintiff.
(2) Whether the Civil Court possessed the jurisdiction to
determine the lease hold rights of the Plaintiff in the suit property.
(3) Whether the ground on which the objection was raised to the
sanctions and permissions can be said to constitute fraud to lift the
bar of Section 42 of Slum Act.
(4) Whether in absence of finding of fraud, the Civil Court had the
jurisdiction to declare the slum scheme as illegal and void.
(5) Whether challenge to slum scheme is maintainable on ground
of absence of consent of owner/lessee of the concerned property.
REASONS AND CONCLUSION:
31. Dealing first with the appropriate reliefs required to be sought
in the suit, the Plaintiff's grandfather was the original lessee under
the lease dated 6th May, 1984. The Plaintiff's grandfather applied for
fixation of standard rent, which was allowed by the Trial Court and
rejected by the Appellate Bench holding that Bombay Rents Hotel and
Lodging House Rates Control Act, 1947(Rent Act of 1947) had no
applicability to the plots of land. In Civil Revision Application filed
against the rejection, the High Court vide order dated 21 st June 1957
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held that Rent Act applied and upheld the order of Trial Court fixing
the standard rent.
32. The tenancy of the Plaintiff's grandfather and father were
recognised in the conveyance dated 15 th April, 1995 executed by F.E.
Dinshaw Charities in favour of M/s Rado Construction Company. The
Deed of Conveyance contains recital about the tenancy of the
Plaintiff's father, who expired on 10 th September, 1989. The Deed
further recites that Plaintiff's mother Pushpa had forwarded the rent
cheque for period from 1st February, 1985 to 31st January, 1990 which
was not accepted since Pushpa had not satisfied that she had
inherited the tenancy rights.
33. The Rent Act of 1947 was repealed by the Maharashtra Rent
Control Act, 1999 which did not afford protection to open plot of land.
It cannot be disputed that there is no notice of termination of
tenancy or any proceedings instituted for recovery of possession of
suit property by the owners of the suit property.
34. The plaint did not seek relief of declaration of Plaintiff's
tenancy and indeed it could not have, as the jurisdiction vested in the
specialised Court under the rent control legislation. Mr. Cama would
submit that the Trial Court did not have the jurisdiction to render
finding on Plaintiff's tenancy rights, whereas Mr. Damle would submit
that it was not necessary to seek declaration of tenancy and the Trial
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Court need not have have gone into the issue of lease hold rights of
the Plaintiff in view of the fixation of standard rent of the suit
property in the year 1957 and in absence of termination of tenancy.
The issue here is slightly different. The substantive relief sought by
the Plaintiff was :
"(c) That this Hon'ble Court be pleased to declare that
sanctioned and/or permission granted by the Defendant No.1
including the Letter of Intent dated 20th July, 2006 for
development of the suit plot of land bearing Survey No
112(part) having corresponding CTS No.2, 2/1 to 4, 3, 4, 4/1 to
15, 5, 5/1 to 8, 6(part), 6/1 to 63, 6/82 to 128, 6/143 to 202,
6/211 to 288, 6/296 to 324, 6/337 to 495, 7, 7/1 to 24 of Village
Malad and lying at Mahadevbhai Desai Road, Kandivali (East),
Mumbai 400 101 totally admeasuring 21,631 Sq. Mtrs without
the consent of the Plaintiff is illegal, bad in law and ultra vires
the provision of Slum Act as well as the order passed by the
Hon'ble High Court in Writ Petition No.7385 of 2005 and such
the same is liable to be quashed and set aside."
(emphasis supplied)
35. The Plaint does not challenge the implementation of the slum
rehabilitation scheme as being bad in law per se but for the reason
that without Plaintiff's consent, the same could not have been
implemented on the suit property. The representation of Pushpa to
SRA was that she held lease hold rights in the suit property and
without her consent the scheme submitted by the Appellant herein
cannot be sanctioned by SRA. The Authority noted that the property
register card shows that conveyance deed has been executed in
favour of M/s Rado Construction Company who has given the power
of attorney to Appellants herein and therefore the proposal for
sa_mandawgad / Patil-SR (ch) 21 of 43
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implementation of slum rehabilitation scheme submitted by Appellant
can be considered by SRA. It held that the property register card
does not show the name of Pushpaben D. Ruparelia in the
ownership/title column and that the rights are required to be
established before the Competent Authority under the Maharashtra
Land Revenue Code. It held that SRA is not competent to go into
issues of ownership/title of lands or to make corrections in the
property register card.
36. The objection to the implementation of SRA Scheme was
rejected in the absence of any evidence of Pushpa's right in the suit
property. The tenancy rights of Pushpa were disputed by F.E. Dinshaw
Charities as Pushpa had not satisfied that she had inherited the
tenancy rights. It was thus imperative for the Plaintiff to seek
declaration of tenancy title in the suit property under general law of
inheritance. Section 35 of The Maharashtra Rent Control Act, 1999
provides that Section 33 or 34 of the Act does not bar a party to the
suit, proceeding or appeal in which question of title to premises arises
and is determined, from suing in a competent court to establish his
title to such premises.
37. In Rajaram Brindavan Upadhyaya v. Ramraj Raghunath
Updhyaya16, the issue for consideration before the Hon'ble Division
16 1977 SCC Online Bom 73.
sa_mandawgad / Patil-SR (ch) 22 of 43
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Bench of this Court was whether Section 5(11)(c) of Rent Act of 1947
should yield to superior right of inheritance to tenancy vesting in the
heir on death of tenant under personal law of parties. In facts of that
case, the plaintiffs' suit was for declaration that they alone are
tenants of the suit room and Defendant No.1 has no right, title or
interest therein, and for possession to the exclusion of Defendant
No.1. The Hon'ble Division Bench considered the suit is de hors the
Rent Act on the basis of title and held as under:
"12. Section 29A of the Rent Act gives a clear indication that
the finding given by a Court under the Rent Act that a certain
person is a tenant within the meaning of s.5(11)(c) is not meant
to supersede the right of inheritance to the tenancy vesting in
the heirs on the death of the tenant, under the personal law of
the party. That section provides:
"29A. Nothing contained in section 28 or 29 shall be deemed
to bar a party to a suit, proceeding or appeal mentioned
therein in which a question of title to premises arises and is
determined, from suing in a competent court to establish his
title to such premises."
13. In the instant case, for example, let us suppose that
some proceedings were taken in the special Court under the
Rent Act on the death of Brindavan to decide who was the
tenant within the meaning of s.5(11)(c) of the Rent Act and in
those proceedings the finding was given that Defendant No. 1
was the tenant and not the plaintiffs. On the plain language of
s.29A, the plaintiffs were not debarred from wing in a
competent Court to establish their title to the suit room on the
ground that, as the heirs of the original tenant, they alone
were entitled to inherit the right of tenancy in the suit room. If
there were no bar to the plaintiffs filing such a suit, it is clear
that on their succeeding in establishing their title, the
declaration given in favour of Defendant No.1 under s. 5(11)(c)
will cease to operate and the plaintiffs alone will have to be
regarded the tenants. In other words, the provisions of s. 5(11)
(c) of the Rent Act are not meant to supersede the right of
inheritance to the tenancy vesting in the heirs on the death of
the tenant, under the personal law of the party. On the other
hand, the provisions of s. 5(11)(c) must yield to the superior
sa_mandawgad / Patil-SR (ch) 23 of 43
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right of inheritance to the tenancy vesting in the heirs on the
death of the tenant under the personal law of the party.
.................
26. Mr. Bandiwadekar on behalf of respondent No.1
contended that the present suit was by tenants to which
landlords had been made parties and it was of a nature falling
under s. 28 of the Rent Act. It was, therefore, not open for the
regular civil Court to entertain and try the suit. In the
alternative, he contended that on the allegations in the plaint,
this would be a suit under the provisions of the Rent Act and,
therefore, a declaration that the plaintiffs are tenants could be
given only under the provisions of s. 5(11)(c) of the Rent Act.
The plaintiffs, however, did not satisfy one of the qualifications
necessary under that section because both the Courts below
have found that they were not residing with the deceased
tenant at the time of the tenant's death. The plaintiffs' suit
had, therefore, to be dismissed.
27. We are unable to see how the plaintiffs' suit can be of
the nature mentioned in s.28 of the Rent Act. Section 28
provides what kinds of suits, proceedings or applications can
be entertained and tried by the Court having special
jurisdiction under the Rent Act. If we make an analysis of the
section, the following kinds of suits, proceedings or
applications can be entertained, tried or dealt with by the
special Court under the Rent Act:
(1) a suit or proceeding between a landlord and a tenant
relating to the recovery of rent or possession of premises;
(2) a suit or proceeding between a licensor and a licensee
relating to the recovery of the licence fee or charge;
(3) an application made under the Rent Act; and
(4) a claim made or question raised arising out of the Rent Act
or any of its provisions.
28. It will be seen that the plaintiffs' present suit does not
fall in any of the categories mentioned in s. 28 of the Rent Act,
which fall within the exclusive jurisdiction of the special Court
created under the Rent Act. Although the plaintiffs are
claiming to be the tenants, that is only a description of their
title. But their suit is still based on title and such a suit does
not fall in any of the categories of the matters that can be tried
by the special Court."
sa_mandawgad / Patil-SR (ch) 24 of 43
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38. The suit can, thus, be filed to establish title to the suit property
under the general law of inheritance, the title not being of ownership
but of tenancy. In present case, it was not necessary for the Plaintiff
to be driven to the Small Causes Court for seeking declaration of
tenancy. The tenancy of the Plaintiff's predecessor stood established
by the order of Hon'ble Division Bench of this Court which was also
noted in the conveyance deed executed between F.E. Dinshaw Trust
and M/s. Rado Construction Company.
39. The Plaintiff's case for challenging the implementation of the
slum rehabilitation scheme on the suit property without Plaintiff's
consent was premised on right to the suit property by inheritance of
tenancy under general law of inheritance. As the title documents of
the suit property did not reflect Pushpa's tenancy rights in the suit
property, it was necessary to seek specific substantive relief of
declaration of tenancy title to the suit property. Though the Trial
Court framed an issue of Plaintiff's right title and interest in the suit
property, in absence of specific relief of declaration of tenancy right
to the suit property based on general law of inheritance, the Trial
Court misdirected itself and examined whether the tenancy rights of
the Plaintiff still subsisted in the suit property, which issue could be
decided only by the Small Causes Court.
sa_mandawgad / Patil-SR (ch) 25 of 43
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40. The issue to be adjudicated by the Trial Court was whether the
tenancy rights of the original tenant have been inherited by the
present Plaintiff under the general law of inheritance and thus
Plaintiff had acquired tenancy title to the suit property , which
declaration was necessary to sustain the challenge to the sanctions
and permissions granted by SRA without Plaintiff's consent. Instead of
adjudicating the said issue, the Trial Court has delved into the issue of
status of Plaintiff qua the suit property and has rendered a finding
that the tenancy of Plaintiff is still in existence. The declaration of
tenancy could be granted only by the Small Causes Court and not by
the Civil Court.
41. The Slum Rehabilitation Authority had specifically rejected the
objection on the ground that Pushpa's right to the suit property is not
reflected in the property register cards. The tenancy rights were also
disputed by the owners of the suit property. In such eventuality, the
options available to the Plaintiff was to approach the Small Causes
Court for declaration of tenancy or to seek appropriate relief of
declaration of tenancy title to the suit property under the general law
of inheritance. In absence of the appropriate relief, the Trial Court
could not have examined the validity of slum scheme. The Trial Court
opines that the Plaintiff has filed the suit assuming to be lessee and
therefore declaration to that effect is not at all required, which is
sa_mandawgad / Patil-SR (ch) 26 of 43
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clearly unsustainable as it was necessary for the Plaintiff to establish
that he has inherited the tenancy right under the general law of
inheritance to be entitled to seek that absent his consent, the slum
scheme could not be implemented. Whether the consent of Plaintiff
was required or not for implementation of slum scheme is discussed
later in the judgment, however, it was necessary for the Plaintiff to
seek the appropriate relief of declaration of tenancy title to the suit
property.
42. The submission that as injunction was sought, the issue of right
title and interest could be gone into cannot be sustained as there was
cloud over the Plaintiff's tenancy title and it was necessary for the
Plaintiff to seek declaration of tenancy title. [See Anathula Sudhakar
v. P.Buchi Reddy (supra)].
43. Coming to the issue of jurisdiction, the said aspect arises in two
contexts first in the context of determining the tenancy rights of the
Plaintiff and secondly in the context of bar imposed by Section 42 of
Slum Act.
44. The impugned judgment is substantially dedicated to
determining the Plaintiff's status as tenant of the suit property as to
whether the Plaintiff was tenant at sufferance or tenant holding over
after determination of lease, which was clearly outside the jurisdiction
of Civil Court. Such declaration of status of Plaintiff as tenant could
sa_mandawgad / Patil-SR (ch) 27 of 43
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be granted only by the Small Causes Court. Mr. Damle would contend
that the said discussion is unnecessary in view of Plaintiff's tenancy
being accepted. The said submission is partly right as the Plaintiff's
father's tenancy was accepted but the inheritance of the father's
tenancy by the mother and subsequently by the Plaintiff was required
to be established, which has not been done. The said submission
accepts the fact that Civil Court does not have the jurisdiction to
declare the tenancy rights of the Plaintiff in the suit property.
45. Coming to the embargo on Civil Court's jurisdiction under the
Slum Act, Section 42 of Slum Act bars the jurisdiction of Civil Court in
respect of any matter which the Appellate Authority, Competent
Authority, Grievance Redressal Committee or the Tribunal is
empowered under the Slum Act to determine and no Injunction can be
granted by any Court or any authority in respect of any action taken or
to be taken in pursuance of any power conferred by the Slum Act. The
Plaintiff seeks to challenge the Letter of Intent issued by the SRA,
which issue was solely within the jurisdiction of slum authorities. In
essence the dispute was as to who should develop the property. The
representation dated 23rd December, 2006 addressed by the Plaintiff
to the Slum Rehabilitation Authority claimed a right to execute the
Slum Rehabilitation Scheme. The jurisdiction thus vested in the
sa_mandawgad / Patil-SR (ch) 28 of 43
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authorities constituted under the Slum Rehabilitation Act to consider
the person in whose favour the Letter of Intent should be issued.
46. The Plaint seeks declaration that slum rehabilitation scheme is
illegal as the same is sought to be implemented without the Plaintiffs
consent. The statutory scheme of the Slum Act does not make the
implementation of the slum rehabilitation scheme dependent on the
consent of the owner or landholder. The limited right conferred on
the owner/lessee is the preferential right to implement the slum
scheme or monetary claim.
47. The challenge to the Letter of Intent is an issue solely within the
jurisdiction of Slum Authorities. The right available to a owner/ land
holder to claim preferential right to develop, seek acquisition of land,
compensation etc are all issues which can be adjudicated by the Slum
Authorities. The substantive prayer (c) is itself defective as the
framing of slum rehabilitation scheme and implementation thereof
does not require the consent of the owner. The sine qua non for
exercising the rights to implement the slum rehabilitation scheme was
title to the suit property either of ownership or tenancy and without
such declaration, the Authorities could not have recognised the rights
of the Plaintiff.
48. Ignoring the defective nature of prayers, the Civil Court's
jurisdiction was invoked on ground of fraud. Upon my reading of the
sa_mandawgad / Patil-SR (ch) 29 of 43
FA 27-2014.doc
plaint, the pleadings on fraud which can be culled out from the plaint
are :
(a) That, conveyance between F. E. Dinshaw Charities and
M/s Rado Construction Company of 15 th April 1995 makes the
sale subject to the leasehold rights of Plaintiff who is in
possession of the suit plot of land, whereas the Conveyance
between M/s. Rado Construction Company and Defendant No.2
does not mention the Plaintiff's leasehold right.
(b) That, M/s Rado Construction Company is aware of the
order of status quo passed on 28 th August 2001 by the High
Court in Writ Petition No 1930 of 1991 filed by slum dwellers
and that Nalin Patel, who is partner of Defendant No.2 was the
power of attorney holder and was also aware of the status quo
order passed which has not been disclosed to the Slum
Rehabilitation Authority while seeking Letter of Intent.
(c) The Slum Rehabilitation Authority has no authority to
sanction slum rehabilitation scheme on private land without
consent of the owner and lessee and the act done by the
authority is result of fraud and collusion.
49. As a prelude to considering the case of fraud as the leasehold
rights of Plaintiff are not recognised, it is necessary to consider the
rights of an owner of the land on which slum rehabilitation scheme is
proposed to be sanctioned. The Slum Act has been enacted with the
object of making better provision for the improvement and clearance
of slum areas in the State and for their redevelopment. As held in case
sa_mandawgad / Patil-SR (ch) 30 of 43
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of Deena Baldota vs State of Maharashtra (supra), the statutory
scheme of the Slum Act provides for declaration of an area as slum or
slum rehabilitation area and implementation of slum rehabilitation
scheme either through the land-holders/owners and/or the occupants
or by entrusting the same to outside agency or through process of
acquisition. Section 3B(5) of Slum Act and in particular sub section (g)
provides for development of slum rehabilitation area by the land
holders and occupants by themselves or through the developer and
the option available to the SRA for taking up such development in
event of non participation of the landholders or occupants if they do
not come forward within a reasonable time. Section 13(1) vests the
power in the Authority to entrust the work of development to any
agency in event the landholders or occupants do not come forward
within a reasonable time. A cumulative reading of the statutory
provisions shows conferment of preferential right on the owner of the
land to re-develop the slum rehabilitation area albeit with a
corresponding duty to submit a scheme within reasonable time.
50. Section 14 of Slum Act makes provisions for acquisition of the
land by the State Government to enable the Authority to execute any
work of improvement or to redevelop any slum area. Under Section
16 and 17 of Slum Act every person having any interest in any land
acquired under the Act shall be entitled to compensation. The right
sa_mandawgad / Patil-SR (ch) 31 of 43
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which accrues to an owner of the land on which the slum
rehabilitation scheme is proposed is preferential right to implement
the slum scheme or monetary claim upon acquisition. The statutory
provisions of Slum Act does not confer any right on the owner to
stultify the slum scheme on absence of consent. The statutory scheme
envisages consent of 70% slum dwellers for re-development through
developer appointed by them. In Om Shree Sai Developers v. State of
Maharashtra (supra), the Hon'ble Division Bench held in paragraph 9
as under:
"Considering the object and purpose of the "Slum Act", the
slum rehabilitation scheme cannot remain at standstill status
as it is required to be expeditiously implemented bearing in
mind the intended welfare measures. The Competent
Authority under the Slum Act is required to take early decision
and issue directions to ensure smooth implementation of S.R.S.
by overcoming obstacles or hurdles. Disputed questions of
facts, if involved, are at the best left to be resolved by
alternative remedy i.e., for breach of contract monetary
compensation, etc. The High Power Committee constituted by
the State Government, which was approached by the
petitioner, observed thus:
".............................
4. Considering the arguments advanced by the concerned
parties it seems that there is private dispute between the two
developers and therefore the applicant is at liberty to
approach proper Court of Law."
Therefore, the petitioner is not left remediless. The petitioner
can claim monetary compensation by approaching the
competent Civil Court for the alleged breach of contract."
51. In Lullu Vas vs State of Maharashtra (supra), the Hon'ble Apex
Court observed thus in paragraph 29 :
sa_mandawgad / Patil-SR (ch) 32 of 43
FA 27-2014.doc
"29. .....Moreover, the Appellants can be adequately
compensated in the event of their success in the trial and, as
such, have failed to prove any irreparable injury which can not
be remedied..........."
52. The Plaintiff who claims to be lessee of the land cannot claim
any right higher than those conferred on the owner of the land/land
holder/occupants under the statutory provisions.
53. The implementation of Slum Scheme by the authorities through
the Defendant No.2 cannot be said to be result of fraud because of
non recognition of Plaintiff's rights as lessee, when the title
documents of suit property does not reflect the Plaintiff or his
predecessors name. The appropriate course was to adopt necessary
remedy to seek declaration of the Plaintiff's lease hold rights and
thereafter exercise the rights available to a lessee under the Slum Act.
Instead the Plaintiff has challenged the validity of the Letter of Intent
as the same has been issued without his consent. It is the submission
of Mr. Damle that the Plaintiff claims right in the land which cannot
be adjudicated by the slum authorities. The right in land is a dispute
inter se between the owner and lessee and cannot constitute a ground
to challenge the LOI. Upon resolution of the dispute in appropriate
forum, the rights available to the recognised lessee could be
exercised, however, by no stretch of imagination, the inter se dispute
could stall the slum implementation scheme. In Pant Nagar Mahatma
sa_mandawgad / Patil-SR (ch) 33 of 43
FA 27-2014.doc
Phule Co-operative Housing Society Ltd (supra), it is held that
challenge to Letter of Intent is directly covered under Section 42 of
Slum Act.
54. In Qari Mohammed Zakir Hussain v. MCGM (supra), the Co-
ordinate Bench has held in paragraph 15 and 16 as under:
"15. On conjoint reading of the aforesaid provisions, it
would appear that no suit or prosecution can be maintained
against the competent authority or against any person acting
under its authority for anything which is in good faith done or
intended to be done under the said Act or Rules made
thereunder. Section 42 of the Act opens with the expression.
"Save as otherwise expressly provided in this Act" followed by,
"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. "As a necessary
corollary it follows that if the allegation is that the act done or
intended to be done by the concerned authority is the result
of fraud, collusion or mala fide and is clearly in transgression
of the powers conferred on that person or authority under the
Act or Rules, in such a case, the allegation would be
actionable, before the Civil Court being one of civil nature to
be tried only by the Civil Court by virtue of section 9 of the
Code of Civil Procedure Code.
16. It is well settled that exclusion of the jurisdiction of the
Civil Court is not to be readily inferred but such exclusion must
either be explicity expressed or clearly implied. It is also well
settled that even if the jurisdiction it so excluded the Civil
Courts have jurisdiction is 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. On the other hand, a suit in a
Civil Court can always be maintained to question the order of a
Tribunal created by a statute, even if its order is, expressly or
by necessary implication, made final, if the said Tribunal
abuses its power or does not act under the Act but in violation
of its provisions. In other words, if the suit proceeds on the
premises that the offending act has been done not in good
faith, then there is no bar for such a suit."
sa_mandawgad / Patil-SR (ch) 34 of 43
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55. Applying the said principles to the facts of the present case, the
conveyance executed between M/s. Rado Construction Company and
Defendant No.2 recognises the lease hold rights of the Plaintiff's
father, who continued to pay rent till 31 st January 1985 and that after
his death 10th September 1989, the rent forwarded by the Plaintiff's
mother was not accepted as she had not satisfied that she has
inherited the tenancy rights. The conveyance in fact refutes the
acquisition of Plaintiff's mothers tenancy rights under law of
inheritance. The Letter of Intent has been issued on 20 th July, 2006
prior to the execution of the conveyance between M/s Rado
Construction Company and Defendant No.2 in the year 2007. The
proposal for implementation of the slum scheme was submitted by
the Defendant No.2 as Constituted Attorney of the Owner of the
property pursuant to the consent of 70% slum dwellers. The
objection raised by Pushpaben was rejected by SRA vide order dated
14th July, 2006. Subsequently, in the year 2007, the conveyance was
executed between M/s Rado Construction Company and Defendant
No.2. The issuance of Letter of Intent in favour of Defendant No.2
was not founded on the conveyance executed between M/s Rado
Construction Company and Defendant No.2, which was not even
executed at that stage. As it is the Plaintiff's own case that the
conveyance with M/s Rado Construction Company recognised the
sa_mandawgad / Patil-SR (ch) 35 of 43
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Plaintiff's predecessor's right, the Letter of Intent cannot be said to
be result of fraud by reason of suppression of lease hold rights in
subsequent conveyance between M/s Rado Construction Company
and Defendant No.2.
56. Apart from the above, perusal of the conveyance between M/s
Rado Construction Company and Defendant No.2 shows that the
conveyance makes a mention of the recitals in the Conveyance Deed
of M/s. Rado Construction Company that Ruparalia ceased to be a
tenant and has stopped paying rent. That in any event the rent has not
been accepted after the demise of Dwarkadas Ruparelia although
tendered by Pushpaben and no proceedings has been adopted by
Dwarkadas against the Trust prior to the property being conveyed in
favour of M/s Rado Construction. The conveyance deed refers to the
factual position and there is no suppression.
57. The recitals in the Trust Deed are in consonance with the
documents on record that after 1985 no rent was accepted from the
mother of Plaintiff and the recital is that Pushpa has not been
accepted as tenant. The rejection of the Pushpa's objection to slum
rehabilitation scheme was not by reason of absence of
acknowledgment of Pushpa's right in the conveyance executed but for
the reason that Pushpa's name was not reflected in the Ownership/
title columns of the property register card and therefore SRA
sa_mandawgad / Patil-SR (ch) 36 of 43
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observed that the rights have to be established under the
Maharashtra Land Revenue Code, 1966 for updating the property
register card. SRA is not competent to go into the issue of ownership
and title of the land or to make corrections in the property register
card.
58. The Slum Rehabilitation Authority was right in observing that
title issue or updation of property register card is not within their
domain. Accepting for sake of arguments that the Plaintiff was not
required to seek any declaration of subsistence of tenancy, in order to
sustain any objection to the proposed slum rehabilitation scheme, the
title documents should reflect the Plaintiff's name and appropriate
steps in that regard were required to be taken.
59. The Defendant No.2 earlier held power of attorney of M/s Rado
Construction Company, in whose favour conveyance has been
executed by the erstwhile owners through a validly registered
document. M/s Rado Construction Company has thereafter executed a
registered Conveyance in favour of Defendant No.2. The ownership
rights have been transferred in accordance with law and is not
questioned. The property register card was accordingly updated. In
the absence of any lease hold rights in the suit property reflected in
the title documents, the Slum Authorities have rightly considered the
sa_mandawgad / Patil-SR (ch) 37 of 43
FA 27-2014.doc
proposal submitted by the owner for implementation of slum
rehabilitation scheme.
60. I am unable to accept the contention that the non recognition of
the Pushpa's lease hold rights in the conveyance between M/s Rado
Construction Company and Defendant No.2 constitutes fraud in
issuance of Letter of Intent. The Plaintiff as a lease holder, at the
highest, would have the right to submit a rival scheme for
implementation of the slum rehabilitation scheme, however, it cannot
be accepted that without the consent of the lease holder, the slum
scheme cannot be implemented or that the same constitutes fraud by
the authorities.
61. As far as suppression of status quo order passed by the High
Court is concerned, the undisputed facts leading to passing of order
of status quo is that in the year 1942, 3508.70 square meters of land
forming part of Survey No 70 was requisitioned by the Collector on
behalf of the Defence Department which came to be de-requisitioned
in the year 1987. As the land was substantially encroached Writ
Petition No.1754 of 1996 was filed by Pushpa against the Government
of Maharashtra seeking direction to handover vacant and peaceful
possession by removing the encroachments. Vide order dated 24 th
September, 1996 , the High Court directed the authorities to remove
the encroachments and hand over vacant and peaceful possession to
sa_mandawgad / Patil-SR (ch) 38 of 43
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Pushpa, which led to issuance of notice by Tahsildar on 15 th February,
1999. The slum dwellers located on the said land moved the High
Court in Writ Petition No 1930 of 1999. The High Court admitted the
Petition and passed an interim order staying the notice of Tahsildar
and all parties were directed to maintain status quo. The order of
status quo was passed at the instance of the slum dwellers and has to
be understood in the context in which it was passed and in its true
letter and spirit. The order of status quo was meant to protect the
slum dwellers from forcible eviction under the notice dated 15 th
February, 1999. The status quo qua the property cannot be construed
as total prohibition even of the slum dwellers rehabilitation, at the
slum dwellers own instance. The subject matter of the Petition was
not the proposed slum rehabilitation scheme but the challenge was to
the Tahsildar's notice dated 15 th February, 1999. The order of status
quo was therefore immaterial for consideration while implementing
the slum rehabilitation scheme.
62. It is sought to be contended by Mr. Cama that the status quo
order was in respect of Survey No.70(part) and the slum scheme is
being implemented on Survey No.112(part) and would rely on the
cross examination of maintenance surveyor to demonstrate that there
is no connection between the two survey number. There is no such
defence taken in the written statement and without any pleadings or
sa_mandawgad / Patil-SR (ch) 39 of 43
FA 27-2014.doc
framing of issue or evidence on this issue, the same cannot be raised
for the first time before the Appellate Court.
63. The slum rehabilitation scheme is statutorily implemented by
the Authorities in accordance with the Slum Act, which is sought to be
questioned in the Civil Court on ground of fraud. No provision has
been demonstrated to show that for implementing the statutory slum
rehabilitation scheme, the consent of the owner or land holder is
required. The requirement is that the proposal for the scheme should
be backed with the consent of 70% slum dwellers.
64. The issues which were framed by the Trial Court was whether
the Defendant obtained order from Defendant No.1 by practicing
fraud as alleged and whether Defendant No.1 has transgressed their
power while sanctioning Annexure II and Letter of Intent in favour of
Defendant No.2. The finding of the Trial Court is that the recital in the
conveyance deed that the lease has come to an end amounts to act
with malafide intention. It held that by surpassing the lease hold
rights of the Plaintiff, the authorities and Defendant No.2 in collusion
cannot be entitled for implementing the slum rehabilitation scheme.
It held that SRA without competency refused representation of
Pushpa. The finding is that the scheme is illegal and void as the Plain-
tiff's rights have been surpassed while sanctioning the slum rehabilita-
tion scheme. Pertinently, there is no finding of fraud in implementa-
sa_mandawgad / Patil-SR (ch) 40 of 43
FA 27-2014.doc
tion of slum rehabilitation scheme which was necessary for Civil Court
to exercise jurisdiction.
65. Fraud is an act of deliberate deception with the design of secur-
ing something by taking unfair advantage of another. It is a deception
in order to gain by another's loss. It is cheating intended to get an ad-
vantage. (See S.P. Changalvaraya Naidu vs Jagannath17. There is no
evidence of active concealment of Plaintiffs alleged lease hold rights
in the property by the Defendant No.2 while submitting the proposal
for implementing slum scheme. The existence of the Plaintiff's lease
hold rights in the suit property does not ipso facto lead to a conclusion
of fraud for not obtaining the Plaintiff's consent, when the statutory
provisions does not mandate any such requirement.
66. The Trial Court has not considered the issue of maintainability
which was raised in view of Section 42 of Slum Act by reason of the or-
der dated 26th September, 2011 passed on Section 9A application,
which was stayed by the High Court. The bar was not an absolute bar
and at the inception of suit, in view of the pleadings of fraud, the suit
could not have been terminated at the threshold by declining jurisdic-
tion. Upon adjudication, if the pleadings on fraud are established, the
bar under Section 42 would not apply, however, if fraud is not proved,
the Civil Court will not have jurisdiction. The rejection of preliminary
17 1994 1 SCC 1.
sa_mandawgad / Patil-SR (ch) 41 of 43
FA 27-2014.doc
issue of jurisdiction did not render the issue of jurisdiction nugatory
and was required to be decided in the context of proof of fraud. In the
facts of present case, as there is no fraud demonstrated, the Civil
Court did not have the jurisdiction to entertain the challenge to the
Letter of Intent.
67. In light of the discussion above, I find that it was necessary for
the Plaintiff to seek specific relief of declaration of tenancy title to
the suit property under general law of inheritance, without which, the
prayer Clause (c) could not have been considered by the Trial Court.
The absence of recognition of Pushpa's leasehold rights in the suit
property in the conveyance deed executed between M/s. Rado Con-
struction Company and Defendant No.2 or the slum scheme being im-
plemented despite the status quo order does not constitute fraud.
There is no evidence of any collusion or connivance between the De-
fendant No.1 SRA and the Defendant No.2 or that SRA has acted
malafide in violation of the statutory provisions in issuance of Letter
of Intent and therefore bar under Section 42 of Slum Act ousted the
Civil Court's jurisdiction. The right in land is dispute inter se dispute
between the owner and lessee and on the said ground the slum
scheme cannot be questioned in the Civil Court. The statutory authori-
ties cannot be injuncted from performing its duty and the statutory
sa_mandawgad / Patil-SR (ch) 42 of 43
FA 27-2014.doc
right of the slum dwellers cannot be held to ransom in the inter se dis-
pute between the owner and the lessee.
68. Resultantly, the First Appeal is allowed. L.C Suit No 1907 of
2008 stands dismissed.
69. In view of the disposal of First Appeal, nothing survives for
consideration in the pending civil/interim applications and the same
stand disposed of.
[Sharmila U. Deshmukh, J.]
70. At this stage, learned Counsel appearing for the Respondent
seeks extension of status quo order which was operating during the
trial Court proceedings to be continued for a period of four weeks.
The said request is opposed by learned Counsel appearing for the
Appellant. As the status quo order was operating during the trial
Court proceedings, the same is continued for further period of four
weeks.
[Sharmila U. Deshmukh, J.]
sa_mandawgad / Patil-SR (ch) 43 of 43
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 07/05/2025 18:57:17
