Bombay High Court
Barjor Rustom Joshi Thr Poa Bharat ... vs The State Of Maha. Thr. Urban ... on 13 February, 2023
Author: Amit Borkar
Bench: Amit Borkar
45-ia1406-2023 in fast1404-2023.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1406 OF 2023
IN
FIRST APPEAL (ST.) NO.1404 OF 2023
Digitally
signed by
ATUL
ATUL GANESH
GANESH KULKARNI
KULKARNI Date:
2023.02.14
Chandiwala Enterprises Pvt. Ltd. ... Appellant
10:46:46
+0530
V/s.
Ghanshyam Shivpati Sharma & Anr. ... Respondents
Mr. Cherag Balsara with Mr. Yogesh Patil for the
appellant.
Mr. Amogh Singh i/by Mr. D.P. Singh for respondent
no.1.
Mr. P.J. Thorat i/by Ms. Aditi Naikare for respondent
no.2.
CORAM : AMIT BORKAR, J.
DATED : FEBRUARY 13, 2023 P.C.:
1. Not on board. Mentioned. By consent, taken on board for hearing and final disposal.
2. Mr. Amogh Singh and Mr. P.J. Thorat waive service of notice on behalf of respondent nos.1 and 2, respectively.
3. The appellants who were not parties to the suit have filed present first appeal challenging judgment and decree passed by the learned City Civil Court, Mumbai dated 21 st November 2022 declaring defendant not entitled to enter into agreement with respect to the suit structure situated on the suit property, save and 1 45-ia1406-2023 in fast1404-2023.doc except consent of the plaintiff; and further restrained the defendant from interfering with use, occupation and possession of the plaintiff without following due process of law.
4. The appellant claims right, title and interest in the suit property based on the conveyance dated 30 th December 2020. The original defendant conveyed all his rights over the suit property to the appellant. The defendant did not contest the suit though appeared in the suit and, therefore, based on the material on record, the learned Trial Court decreed the suit. Aggrieved thereby, the appellant/applicant filed Leave to Appeal. This Court by order dated 25th January 2023 granted permission to the appellant to file appeal.
5. After having heard learned advocates on all sides, prima facie following factual scenario emerges: (i) Defendant conveyed his right, title and interest in the suit property to the applicant on 30th December 2020; (ii) the competent authority under the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereafter "Slum Act", for short) declared suit property as slum on 20 th May 2022; and
(iii) impugned judgment was delivered on 21st November 2022.
6. Clause (I) (b) of Regulation 33(10) of the Development Control and Promotion Regulations for Greater Mumbai, 2034 reads thus:
"33(10) Redevelopment for Rehabilitation of Slum Dwellers:
I Eligibility for redevelopment scheme:
2
45-ia1406-2023 in fast1404-2023.doc
(a) ---
(b) Subject to the foregoing provisions, only the actual
occupants of the hutment shall be held eligible, and the so-called structure-owner other than actual occupant if any, even if his name is shown in the electoral roll for the structure, shall have no right whatsoever to the reconstructed tenement against that structure."
7. Clause 1.12 of Regulation 33(10) of the said Regulations read thus:
"1.12 Automatic cancellation of Vacant Land Tenure and leases- If any land or part of any land on which slum is located is under vacant land tenure, the said tenure/lease created by MCGM or Municipal Commissioner shall stand automatically terminated as soon as letter of Intent is issued by SRA for a SRS, which is a public purpose, on such land is prepared and submitted for approval to the SRA. Any arrears of dues to be collected by MCGM shall not be linked to the issue of any certificate or NOC relating to the Slum Rehabilitation Scheme.
On sanction of SRS, rights of imla malik, municipal tenants or any other tenancy shall stand terminated in respect of the sanctioned SRS."
8. A conjoint reading of Regulation 33(10)(I)(b) and 1.12 prima facie makes it clear that on declaration of slum, right of structure owner (Imla Malik) comes to an end. Undisputedly, the plaintiff has filed suit based on his right as Imla Malik.
9. Since from the date of declaration of slum his right as Imla Malik comes to an end, prima facie the Civil Court had no jurisdiction to grant relief protecting possession of the plaintiff as the slum-dwellers are in actual possession of the slum and not the plaintiff.
345-ia1406-2023 in fast1404-2023.doc
10. It is well settled principle of law that the doctrine of lis pendens would be applicable if the right in the immovable property is directly and substantially in issue in the suit. It is also well settled that the transferee pendente lite cannot claim independent right than that of his predecessor-in-title. In the facts of the case, the applicant is enforcing only those rights which were available to the original defendant.
11. Since the right to claim relief as Imla Malik under the provisions of the Slum Act has been extinguished, prima facie the Trial Court could not have granted relief in favour of the plaintiff.
12. For the aforesaid reasons, in my opinion, the applicant has made out a case for grant of interim relief in terms of prayer clause
(b) which reads thus:
"(b) that pending the hearing and final disposal of the present First Appeal, the operation of the Impugned Order dated 21st November, 2022 be kindly stayed;"
13. It is made clear that the observations made above shall not influence any other statutory authority where the rights of parties to the appeal are being adjudicated, including authority seized of the matter under section 35(1) of the Slum Act. The authority under section 35 shall decide the appeal of the respondent independent of the observations made above.
14. The interim application stands disposed of in above terms. No costs.
(AMIT BORKAR, J.) 4