Bombay High Court
Slum Rehabilitation Authority & Anr vs Kohinoor (Sra) Co-Op. Hsg on 13 September, 2013
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
APPEAL FROM ORDER NO. 898 OF 2007
WITH
CIVIL APPLICATION NO. 1245 OF 2007
IN
APPEAL FROM ORDER NO. 898 OF 2007
Slum Rehabilitation Authority & Anr. ....Appellants.
Vs.
Kohinoor (SRA) Co-Op. Hsg.
Society (Proposed) and Ors. ....Respondents.
ig WITH
APPEAL FROM ORDER NO. 900 OF 2007
WITH
CIVIL APPLICATION NO. 1247 OF 2007
IN
APPEAL FROM ORDER NO. 900 OF 2007
Slum Rehabilitation Authority & Anr. ....Appellants.
Vs.
Dr. Zakir Hussain Nagar (SRA) Co-Op. Hsg.
Society (Proposed) and Ors. ....Respondents.
WITH
APPEAL FROM ORDER NO. 901 OF 2007
WITH
CIVIL APPLICATION NO. 1248 OF 2007
IN
APPEAL FROM ORDER NO. 901 OF 2007
Slum Rehabilitation Authority & Anr. ....Appellants.
Vs.
Chhatrapati Shivaji (SRA) Co-Op. Hsg.
Society (Proposed) and Ors. ....Respondents.
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WITH
APPEAL FROM ORDER NO. 902 OF 2007
WITH
CIVIL APPLICATION NO. 1249 OF 2007
IN
APPEAL FROM ORDER NO. 902 OF 2007
Slum Rehabilitation Authority & Anr. ....Appellants.
Vs.
New Bharat (SRA) Co-Op. Hsg.
Society (Proposed) and Ors. ....Respondents.
WITH
APPEAL FROM ORDER NO. 903 OF 2007
WITH
CIVIL APPLICATION NO. 1250 OF 2007
IN
APPEAL FROM ORDER NO. 903 OF 2007
Slum Rehabilitation Authority & Anr. ....Appellants.
Vs.
Mata Ramai Ambedkar (SRA) Co-Op. Hsg.
Society (Proposed) and Ors. ....Respondents.
WITH
APPEAL FROM ORDER NO. 899 OF 2007
WITH
CIVIL APPLICATION NO. 1246 OF 2007
IN
APPEAL FROM ORDER NO. 899 OF 2007
Slum Rehabilitation Authority & Anr. ....Appellants.
Vs.
Radha-Krishna (SRA) Co-Op. Hsg.
Society (Proposed) and Ors. ....Respondents.
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Mr. J.G. Reddy for the Appellants.
None for the Respondents.
CORAM : ANOOP V. MOHTA, J.
DATE : 13 SEPTEMBER 2013.
ORAL JUDGMENT:-
As the common facts and law are involved and as the original plaintiffs are common and so also the Appellants and as common issue of facts, as well as, the law are involved, and therefore this common Judgment.
2 Appeal From Order No. 889 of 2007 is not on board.
Mentioned. Taken on board.
3 Appellants-Original Defendant Nos. 2 and 3 have challenged order dated 17 September 2007 passed by the Judge, City Civil Court Bombay, thereby granted Motion partly and passed the following order:-
"1. The Notice of motion no. 3049/07 is partly allowed.
2. Defendant no.2 is directed to accept plaintiffs' proposal for the rehabilitation, pending the hearing and final disposal of the suit.
3. Needless to state that the plaintiffs are bound to 3/13 ::: Downloaded on - 27/11/2013 20:18:04 ::: ssm 4 211-ao-898.07common.sxw comply with procedure of SRA."
4 The Appellants preferred an Appeal from order on 25 October 2007, along with an Application for stay of the order. This Court, while admitting the similar Appeals along with the others against the trial court orders on similar notice of motion taken out by (Respondent No.1) Original Plaintiff No. 1 i.e Kohinoor (SRA) Co-Op.
Housing Society (Proposed), Dr. Zakir Hussain Nagar (SRA) Co-Op.
Housing Society (Proposed), Chhatrapati Shivaji (SRA) Co-Op.
Housing Society (Proposed), New Bharat (SRA) Co-Op. Housing Society (Proposed), Mata Ramai Ambedkar (SRA) Co-Op. Housing Society (Proposed) and Radha-Krishna (SRA) Co-Op. Housing Society (Proposed) in respective Appeals and (Respondent No.2) Original Plaintiff No.2 i.e. M/s. Lakdawala Developers Private Limited, the common order was passed on the Civil Applications on 24 April 2008 and granted the stay, which is reproduced as under:-
The impugned orders virtually decree the suit in circumstances in which such an order ought not to be passed at the interim stage.
2. Mr. Dani submitted that the purport of the order is only to direct the Appellants to formally take the Respondents/Plaintiffs Application on record.
3. I am unable to agree. The order read as a whole, 4/13 ::: Downloaded on - 27/11/2013 20:18:04 ::: ssm 5 211-ao-898.07common.sxw indicates that the Application is not merely to be taken o n record but to be processed in favour of the Respondents. It is not even stated on behalf of the Respondents that the mere placement on record formally of the application would constitute no equities and that the same would not be relied upon to constitute any right in favour of the Respondents.
4. In the circumstances, pending the hearing and final disposal of the Appeal from order, the impugned order shall remain stayed.
5 The learned counsel appearing for the Appellants submits that the above order remained intact till this date. In the result, there was no occasion for the original Plaintiffs to submit and or no occasion for the Appellants to accept any proposal, as directed.
6 It is relevant to note that the original Plaintiffs had taken out six different Contempt Petitions along with the Appeals and thereby contended that the Appellants not complied with the orders of the trial Court and therefore, committed the Contempt of Court.
7 This Court on 24 April 2008, passed the following order rejecting the Contempt Petition by observing as under:-
"There is no merit in these Contempt Petitions. On behalf of the Respondents, it was submitted in the Appeals from Order that the purport of the order was only for the purpose of taking the application on record formally. I 5/13 ::: Downloaded on - 27/11/2013 20:18:04 ::: ssm 6 211-ao-898.07common.sxw have come to a prima-facie conclusion that the purport of the order was not so limited and that it in fact formally decreed the suit.
2. In the facts and circumstances of this case, I do not see any intention on the part of the Respondents to have interfered with the course of justice or deliberately defied the orders of the Court.
3. The Contempt Petitions are therefore dismissed."
8 Respondent Nos. 1 and 2 (Original Plaintiffs), submitted their respective proposals for Slum Rehabilitation as the property is declared as Slum under Section 4(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short "the Act") stating to be the proposed Co-operative Housing Society of the slum dwellers. Respondent No.2 claimed to be the developer in pursuance to the agreement with Respondent No.1 under the Slum Rehabilitation Scheme. The Appellants refused to accept the six different proposals on different plots of the same slum area.
9 The Appellants in view of the policy decision of the State of Maharashtra-Respondent No.3, refused to accept the proposals on the public land from 31 October 2006. The State Government policy dated 26 September 2006 is the part of the record.
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10 The Plaintiffs, therefore, filed separate Suits in the City
Civil Court at Mumbai and prayed as under:-
"(A) This Hon'ble Court be pleased to waive the Notice
under Section 80(2) of the Code of the Civil Procedure and direct the office to register the suit;
(B) This Hon'ble Court be pleased to declare that, the decision or policy of the Defendants not to accept the proposal of the Plaintiffs is null, void and bad-in-law;
(C) This Hon'ble Court be pleased to direct and order, the Defendants, their office bearers, agents, servants, to accept and process the proposal of the Plaintiffs in respect of the redevelopment of the suit property i.e. the property bearing No. CTS No. 2841, village Malvani, Marve, Malad (West), Mumbai 400 095;"
11 The separate Notice of Motions were also taken out in the following terms:-
"(A) Pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to issue an order of mandatory injunction, directing the Defendants Nos. 2 and 3 to accept the proposal submitted by the Plaintiffs, for the redevelopment of the suit property at the property bearing No. CTS. No. 2841, village-
Malvani, Marve, Malad (West), Mumbai 400 095 and to process the same as per the due process of law;"
12 The Appellants and other Respondents opposed on every 7/13 ::: Downloaded on - 27/11/2013 20:18:04 ::: ssm 8 211-ao-898.07common.sxw aspects, apart from maintainability of the Suit in view of Section 42 of the Act. The relevant Section 42 of the Act is as under:-
"42. Bar of Jurisdiction- Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction in respect of any matter which the Administrator, Competent Authority or Tribunal is empowered by or under this Act, to determine; and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
13 The learned Judge without deciding the issue of jurisdiction and without considering the fact that the Plaintiffs-
Respondents' main prayer, to get declaration about the policy of the Government being null and void and bad in law by the mandatory orders, directed the Appellants to accept the proposals and to consider the same pending the hearing and final disposal of the Suits, which are still pending. No findings given whatsoever with regard to the mandate of Section 80(2) of the Code of Civil Procedure (for short, CPC).
14 The learned counsel appearing for the Appellants, has relied upon the Judgment of this Court in Lokhandwala Infrastructure Private Limited Vs. Om Dattaji Rahiwasi Seva Sangh 8/13 ::: Downloaded on - 27/11/2013 20:18:04 ::: ssm 9 211-ao-898.07common.sxw and Ors., dated 5 April 2011, whereby a Single Judge of this Court, (Dr. D.Y. Chandrachud, J.) refused to grant ad-interim relief, apart from merits also in view of Section 42 of the Act in question, by observing as under:-
"8. Section 42 has been amended so as to substitute the Slum Rehabilitation Authority instead and in place of an administrator. By the first part of Section 42 it has been provided that no civil court shall have jurisdiction in respect of any matter which the Slum Rehabilitation Authority is empowered by or under the Act to determine. By the second part no injunction can 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 the Act. Now the powers of the Slum Rehabilitation Authority are cast in broad terms. The authority is empowered to get a Slum Rehabilitation Scheme implemented and to do all such other acts and things as may be necessary for achieving the objects of the rehabilitation of slums. The purpose and object of the Act is to ensure the proper rehabilitation of slums. The land owning authority, be it the State Government or as in the present case the Municipal Corporation also has a vital stake in ensuring that the purpose and object for which the Scheme is to be implemented is duly fulfilled. The Slum Rehabilitation Authority has been vested with the jurisdiction and power to ensure the proper implementation of rehabilitation schemes and to do all other acts and things necessary for achieving the object of the rehabilitation of the slums."
15 The same Judgment is confirmed by the Division Bench of this Court reported in 2011(4) Bom. C.R. 583, and further by the Supreme Court by order dated 20 May 2011, and thereby accepted the 9/13 ::: Downloaded on - 27/11/2013 20:18:04 ::: ssm 10 211-ao-898.07common.sxw case of the Appellants with regard to the jurisdiction of the Civil Court to entertain such Suits.
16 The same is the view taken recently in Ashok B. Nigudkar Vs. Sudhadra P. Nirgudkar 1 by observing as under:-
"8. .......Section 42 of the said Act, provides that save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Appellate Authority is empowered by or under this Act to determine and further that 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."
17 The Court below, in such matters when the main prayer is about the declaration of Government policy being null and void and/or illegal, must considered to decide the same first, if the Civil Court has jurisdiction. The issue of injunction, even in case of pendency of jurisdictional issue, if a case is made out, may be granted but, subject to again considering the power of the Court to entertain such Suit and to grant mandatory injunction which is nothing but granting the final relief to the main Suit itself, at ad-interim stage of the proceedings against the State policy. This is not the case where 1 2013(4) Mh.L.J. 175 10/13 ::: Downloaded on - 27/11/2013 20:18:04 ::: ssm 11 211-ao-898.07common.sxw for want of urgency and/or any details revolving around the prima-
facie case, balance of convenience, equality and/or irreparable injury was made out basically when the decision of the Appellants even if any, was based upon the policy decision of the State of Maharashtra.
The sanction of any scheme and its related aspects under it, the Appellants are the competent authority to deal with the same.
Therefore, in view of specific provisions of the Act, the Appellants are the competent authority to deal with and to decide the issue even with this regard. The Court jurisdiction, in view of specific provisions, just cannot be overlooked by the Court while passing such mandatory order as done in the present case. This is against the provisions of law and the basic requirement of grant of injunction and specially mandatory injunction, as ordered in this case. In a given case, the Court may come to a particular conclusion, after hearing both the parties, referring to the policy decision. But, before deciding the same, there is no question of passing such mandatory order, as done in the present case. The order, therefore so passed, is without jurisdiction. The Court ought not to have passed such mandatory order directing the Appellants and/or its officer to accept such proposals.
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18 In the present case, as noted above, this Court on 24 April
2008 while admitting the matter rightly stayed the mandatory order.
Therefore, there was no question of accepting the proposals forwarded by Plaintiffs-Respondent Nos. 1 and 2. Now no case to grant any relief and further no case to keep the matters pending.
19 We are not concerned at this stage with the merits of the said proposals and its effect, in view of the pendency of the Suits.
However, in view of above reasons, I am inclined to observe that the case is made out by the Appellants to quash and set aside the impugned order as it is without jurisdiction, illegal and contrary to the law.
20 Resultantly, the following order:-
ORDER
a) Impugned orders dated 17 September 2007, passed by the Judge, City Civil Court, Bombay in respective Notice of Motions are quashed and set aside.
b) All the Appeal from Orders are allowed, with liberty.12/13 ::: Downloaded on - 27/11/2013 20:18:04 :::
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c) The respective Notice of Motions are accordingly
dismissed.
d) There shall be no order as to costs.
e) In view of above order, all the Civil Applications are
also disposed of.
(ANOOP V. MOHTA, J.)
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