Mr. Ghanshyam Shivpati Sharma And ORS. v. M/S. Smgk Developers Pvt. Ltd.,

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 32 OF 2013 WITH CIVIL APPLICATION NO. 33 OF 2013 Mr. Ghanshyam S. Sharma and ors.

.. Appellants vs.

M/s. SMGK Developers Pvt.Ltd.

.. Respondent Mr. Amogh Singh a/w. D.P. Singh i/b Anil D. Yadav for the Appellant. None for the Respondent.

CORAM :

M. S. SONAK, J.

DATE : 05 JANUARY 2017.

P.C. :- 1] Heard Mr. Amogh Singh, learned counsel for the appellants. None for the respondent though served and represented. 2] This appeal is directed against the order dated 7 May 2012 made by the City Civil Court at Dindoshi (Trial Court), the operative portion of which reads thus:

"ORDER This Court has no jurisdiction to try and decide this suit, hence plaint be returned to the plaintiffs for seeking redressal before the appropriate forum."

3] Learned Trial Court, in the impugned order, has held that the suit is barred under section 42 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (Slum Act) and for this purpose, has placed reliance upon the decision of the Full Bench of this court in Tulsiwadi Navnirman Cooperative Housing Society Ltd. and anr. vs. State of Maharashtra and ors. - 2008 (1)Bom. C.R.1.

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4] Mr. Amogh Singh, learned counsel for the appellant, has invited my attention to the averments in the plaint as well as the reliefs applied for therein. On the basis of the same, he submits that the bar under section 42 of the Slum Act is not even remotely attracted to the facts and circumstances of the present case. Mr. Amogh Singh has also taken me through the relevant portions of the judgment of the Full Bench in Tulsiwadi Navnirmal CHS Ltd. (supra), and submitted that the learned Trial Court has clearly misconstrued the said authority. For these reasons, Mr. Amogh Singh submits that the impugned order is liable to be set aside and the suit restored to the file of learned Trial Court for adjudication on merits.

5] From the perusal of the plaint, it is quite clear that the dispute between the parties is a pure civil dispute, mainly in the context of agreement of assignment dated 7 April 2005. It is the case of the plaintiffs that the sole defendant developer has breached the terms and conditions of the agreement of assignment dated 7 April 2005 and the disputes have arisen between the parties on account of the same.

(b) permanent injunction restraining the defendant from demolishing the structures in the suit property , without following due process of law;

(c) permanent injunction restraining the defendant from installing its sign board upon the suit property or any 2/10

operation thereof, without consent of the plaintiffs and without following the due process of law; and (d) permanent injunction restraining the defendant from dealing with the suit property or entering into any agreements with third parties in respect of the suit property, without consent of plaintiffs and without following due process of law. 6] It is to be noted that to the suit none of the authorities referred to in section 42 of the Slum Act have either been impleaded nor it can be said that the subject matter of the suit is some matter which the authorities referred to in section 42 of the Slum Act are empowered by or under the Slum Act to determine.

In fact, in paragraph 12 of the impugned order, learned Trial Court has itself noted that in the suit there is no challenge to any action, order of notice by the competent authority under the Slum Act. All that is stated in this paragraph is that the suit is in respect of property, which is declared as a slum and in respect of which, scheme of rehabilitation has been commenced. Since, no evidence was led by the parties, it is really not understood as to how the learned Trial Court would make an observation of this nature. However, even assuming that the suit property has been declared as a slum or that there is some slum rehabilitation scheme in progress in or upon the suit property, that by itself, will not oust the jurisdiction of the civil court, considering the averments in the plaint and the nature of reliefs applied for therein.

7] From the averments in the plaint and the nature of reliefs applied for therein, it is quite clear that this is the case of contractual 3/10

dispute between the appellants(plaintiffs) and the respondent (defendant). As regards such dispute, none of the authorities referred to in section 42 of the Slum Act have power or authority to adjudicate or make any determination. In such circumstances, the bar under section 42 of the Slum Act was not attracted. 8] In Abdul Sattar Haji Usman and anr. Vs. The Archbishop of Bombay & ors - 2016 SCC OnLine Bom 2039, learned Single Judge of this Court upon analysis of the provisions of Section 42 of the Slum Act has held that private disputes between the occupants of the slum and the developer, do not, under all circumstances, attract the bar under section 42 of the Slum Act. In fact, in the said case, apart from the civil disputes between the parties, there was a further challenge to the acquisition of the property by invoking the provisions of the Slum Act and it was alleged in the plaint that even in such acquisition is fradulent. In paragraphs 8 to 12, learned Single Judge has observed thus:

"8.

Section 42, as is plain from its language, ousts the jurisdiction of the civil court in respect of all matters which the authorities named therein are empowered to determine by or under the Act. Exceptions, if any, must be found in the Slum Act itself, as this ouster is subject to what is otherwise expressly provided therein. Section 42 has a second part, which prohibits grant of any injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the Slum Act.

9.

Let us first consider if on the terms of Section 42, the present suit is barred or granting of any particular relief claimed in the suit (i.e. injunction) is prohibited. The matters which the authorities named in Section 42 are empowered to determine are the following : The competent authority, upon a complaint from any person or report from its officer, police, etc. is empowered to order demolition of any structure, which is unauthorised or 4/10

illegal in terms of Sections 3Z-1 and 3Z-2 of the Slum Act. It is also empowered to declare any area or buildings in any area to be a slum area under Section 4 of the Slum Act. The competent authority has also power to execute any work of improvement under Section 5 and to require occupiers of premises within such area to vacate the premises or require improvement of buildings unfit for human habitation and of areas which are source of danger to public health, respectively, under Sections 5A, 5B and 5C of the Slum Act. It may also direct restrictions on erection of buildings in slum areas except with its prevision permission under Section 8. The competent authority also has power to order demolition of buildings unfit for human habitation in pursuance of Section 9 of the Slum Act.

With the previous approval of the State Government, the competent authority is empowered to entrust to any agency recognised by it the work of execution of any improvement, clearance of redevelopment work or maintenance or repairs, etc. under Section 10A. The competent authority is also empowered to declare any slum area to be a clearance area under Section 11 of the Act and make a clearance order under Section 12. It has power to redevelop such clearance area under Section 14. So also, the competent authority has powers to determine compensation payable to any person having interest in any such acquired land under the Act, decide the apportionment of such compensation and order payment thereof, respectively, under Sections 17, 18 and 19 of the Act.

The competent authority may also grant permissions for institution of suits or proceedings under Section 22 of the Act. The competent authority also has power to determine rent of any building in any slum area. It has various other miscellaneous powers of entry, inspection, etc. under Chapter 7 of the Slum Act. Appeals by persons aggrieved by any notice, order or direction issued or given by the competent authority lie before the Appellate Authority under Section 35 of the Act. So also, appeals by persons aggrieved by notices, orders or directions of the Appellate Authority or appeals for the purpose of resolving disputes in relation to matters about eligibility of a slum dweller or his entitlement, etc. lie before the Grievance Redressal Committee constituted by the State Government under Section 35(1)(a) of the Slum Act.

The decisions of this Grievance Redressal Committee have been made final by virtue of subsection (5) of Section 35.

2(i) of the Act is empowered to determine questions in respect of expenses to be recovered as arrears of land revenue and disputes in respect of such claims, under Section 44 of the Slum Act. These are the only matters which the authorities named under Section 42 are empowered to determine. Apart from these named authorities, there are other authorities including the Slum Rehabilitation Authority as well as the State Government who are empowered to exercise powers and determine various matters under the Slum Act. The first part of Section 42 does not apply to these powers or matters. For example, the Slum Rehabilitation Authority appointed under Section 3A of the Act is empowered to exercise various functions and perform duties under sub-section

(3) of Section 3A, namely, formulation of schemes for rehabilitation of slum areas and getting the same implemented and doing of all acts and things as may be necessary for achieving the object of rehabilitation of slums. So also, the State Government is empowered to acquire land to enable the Authority to execute any work of improvement or to redevelop any slum area or any structure in such area. The first part of Section 42 does not apply to any of these matters to be decided by these authorities, though no court or authority can grant any injunction in respect of any action taken or to be taken in respect of these matters by virtue of second part of Section 42.

In other words, though jurisdiction of the civil court is not barred in respect of any of these latter matters, no injunction can be granted by any civil court in respect of those. On this analysis, let us consider the present suit and the reliefs which it asks for. The present suit, in the first place, seeks a declaration of ownership of the suit property. Secondly, it seeks recovery of possession of the suit property on the basis of such declaration. Thirdly, it prays for a declaration that the acquisition of the suit property under the Slum Act is vitiated by fraud and liable to be struck down.

Lastly, it seeks a permanent injunction restraining the Defendant State as well as the former owner of the suit property and the society of slum-dwellers and occupants from interfering with the use, occupation and enjoyment of the suit property by the Plaintiffs. None of these matters are to be decided by the Competent Authority, Appellate Authority, Grievance Redressal Committee or Tribunal under the Slum Act.

suit property claimed in the suit. It does not seek to directly affect any action taken or to be taken in pursuance of any power conferred by or under the Slum Act. In the event the Plaintiffs' ownership and possession are decreed by the Court and the acquisition is struck down, and possession restored to the Plaintiffs, the Plaintiffs would be entitled to the permanent injunction prayed for in the suit. No exception, thus, can be taken to any of the prayers in the suit on the plain terms of Section 42. 10.

Learned Counsel for the Defendants rely on the judgments of this Court in the cases of Housing Development and Improvement India Pvt. Ltd. Vs. Narendra L. Aswani & Others, Lokhandwala Infrastructure Pvt. Ltd. Vs. Dhobighat Compound Rahiwasi Seva Sangh and others, and Naresh Lachmandas Aswani Vs. Haridas alias Hardas Lachmandas in support of their contention that the suit is barred under Section 42. In the case of Housing Development & Improvement India Pvt. Ltd. (supra), an injunction was claimed in respect of disposal of, or creation of third party rights in, premises in the buildings which were under construction in an SRA project. The ad-interim injunction granted by the learned Single Judge was set aside by the Appeal Court.

In that case, there was no challenge to the notice issued by the Slum Authority as well as the acquisition notification. The prayer for injunction directly interfered with the possession and third party rights to be created in buildings which were being constructed under an LOI issued by the Slum Authority for an SRA project sanctioned under the Slum Act. When this matter came up before a learned Single Judge (Dhanuka, J.)

for consideration of interim relief, after the ad-interim injunction was rejected by the Appeal Court, the learned Judge in Naresh Lachmandas Aswani (supra), specifically held that prayers (a) to (c), and (e) to (h), which inter alia dealt with the title of the Plaintiff and cancellation of various documents executed by the Defendant in breach of that title, were very much within the jurisdiction of the Civil Court and it was only the prayer for delivery of possession which was barred, since LOI was already issued in respect of the Slum Rehabilitation Scheme, which was being implemented on the property. The suit, in that case, was, however, dismissed by the learned Single Judge on the ground of bar of limitation.

functions of the Authority, it was clear that the Authority was not empowered to determine private rights or liabilities as between the Slum dwellers and the developer vis-avis any development agreement entered into between them for redevelopment of any slum. The court held that whether or not such development agreement is binding on the parties thereto, whether or not any party has breached such development agreement, and whether or not the party complaining of such breach is entitled to specific performance of the development agreement, all of which were matters arising for the determination in that suit, were not matters which the Authorities under the Slum Act were empowered to decide. This Court further held that as for the particular relief, namely, permanent or temporary injunction restraining Defendant No.

26 from carrying on any development or directly or indirectly preventing it from acting as a developer of the particular Slum Rehabilitation Scheme, which the Authority authorized it to do, whether or not such relief can be granted would be considered on merits at the hearing of the suit or the Notice of Motion, as the case may be. But such consideration did not reflect on the jurisdiction of this Court to entertain the suit as a whole. The Court might entertain the suit and yet not grant the particular relief, if it considered the same to be barred under Section 42 of the Slum Act.

11.

The main dispute in the present suit is between the Plaintiffs and Defendant No.1, on the one hand, concerning the title of the suit property. This dispute is clearly out of bounds for the authorities under the Slum Act. It is for determination of private rights as between two rival claimants, which the authorities under the Act are not empowered to determine. On the other hand, the suit is also between the purported owner of the property and the acquiring authority, alleging fraud on the part of the latter. Even this dispute does not lie before any of the authorities named in Section 42.

12.

Secondly, as this Court held in Lokhandwala Infrastructure, whether a particular relief, whether of permanent or temporary injunction, can or cannot be granted, does not reflect on the jurisdiction of the Court to entertain the suit as a whole. This Court may entertain the suit and yet not grant any particular relief amongst the many reliefs claimed in the suit on 8/10

account of a legal bar, in this case under Section 42 of the Slum Act."

9] In the impugned order, the learned Trial Court has almost entirely relied upon the decision of the Full Bench of this court in Tulsiwadi Navnirman CHS Ltd. (supra), and observed that the question of jurisdiction of the civil court, in cases similar to present one has been dealt with by the Full Bench in Tulsiwadi Navnirman CHS Ltd (supra). Such reasoning on the part of learned Trial Court constitutes an error apparent on the face of record. It is possible that such reasoning is a result of learned Trial Court not reading or in any case not reading entirely the decision of the Full Bench in Tulsiwadi Navnirman CHS Ltd. (supra).

10] In fact, in paragraph 98 of Tulsiwadi Navnirman CHS Ltd. (supra), the Full Bench, in terms has held that it does not wish to go into the interpretation so also the ambit and scope of section 42 of the Slum Act. Therein, it is further observed that it is suffice to state that doors of a civil court cannot be shut to a litigant unless the jurisdiction of civil court is ousted by express provision or necessary implication. In the conclusion at paragraph 118, it is recorded that purely private disputes or those involving contractual rights, will have to be ordinarily resolved by recourse to civil suit or arbitration and this principle would apply even to petitions where the State, S.R.A., B.M.C., MHADA etc. are impleaded as parties. In the impugned order, learned Trial Court has quoted certain observations in paragraphs 106 and 114, which, according to it are not at all relevant for determining whether the power under section 42 of the 9/10

Slum Act was attracted to the facts and circumstances of the present case. For this reason also, the impugned order is unsustainable. 11] For the aforesaid reasons, this appeal is allowed. The impugned order is set aide. S.C. Suit No. 192 of 2012 is restored to the file of the Trial Court. The Trial Court is directed to dispose of the civil suit in accordance with law and on its own merits. 12] In the facts and circumstances of the present case, the respondent is directed to pay costs of Rs.10,000/- to the appellants. 13] Parties to appear before the Trial Court on 30 January 2017 at 11.00 a.m. and file authenticated copy of this order. In case, the respondent herein does not appear on the said date, the Trial Court may issue fresh notice to the respondent by indicating the returnable date. The Trial Court should also ensure that the costs are paid by the respondent to the appellants.

14] In view of disposal of the appeal, the civil application does not survive and the same is also disposed of.

15] All concerned to act on the basis of authenticated copy of this order.

(M. S. SONAK, J.) dinesh 10/10