Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4583 OF 2009
[Arising out of Special Leave Petition (Civil) No. 12082 of 2009]
Sonu Babu Bhambid & Ors. …Appellants
VERSUS
Dream Developers & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Appellants herein are slum dwellers. They and/ or their
predecessors encroached upon a property bearing C.T.S. No. 61, Survey
No. 59 in village Mulgaon. Indisputably, an agreement was entered into
by and between the parties hereto with regard to their rehabilitation on
C.T.S. No. 82, the relevant conditions whereof read as under:
“3. Eligibility
There are a number of huts which are existing on
the slum property, whose names of occupant and
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structures are appearing in 1995 voters list and are
occupying the same till date. It will be the
responsibility and obligation of the occupant to
obtain Eligibility Certificate by the Competent
Authority. In case the Occupant fails to get such
certificate this agreement will ipso facto come to
an end and occupant will not have any rights
against the party of the other part. The eligibility
certificate to be issued by concerned Authority
shall be final and binding.
4. Consent
Slum dwellers hereby agree and give consent to
participate in SPA as per DCR (10), Appendix IV.
If, however, the Developer is unable to implement
SRA scheme due to any reasons, the occupant will
still get the allotment of 225 sq. ft. carpet area on
ownership basis form the Developer in this case
the proposal will be sanctioned by MCGM. In
other words, the interest of the occupant is
safeguarded from all angles. The occupant is
hereby aware and agrees to shift into permanent
ultimate accommodation admeasuring 225 sq. ft.
carpet area which will be consisted for them on
CTS No. 82 village Mulgaon.”
3. Inter alia on the premise that the appellants failed to obtain
eligibility certificate, the respondents started construction of commercial
building on Survey No. 82.
4. The appellants filed a suit in the City Civil Court at Bombay which
was marked as Short Cause Suit No. 7 of 2009 praying inter alia for a
declaration:
“(a) That this Hon’ble Court may be pleased to
declare that the agreements under the head as
“Agreement between Slum dwellers and
Developer” as identical to Exhibit B to the plaint
entered into on different dates between Defendant
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No. 1 and 2 and the plaintiff are effective,
subsisting and binding on the parties and
accordingly the plaintiffs are entitled to be
provided a flat of carpet area of 225 sq. ft. in the
plot CTS No. 62 situated at Moolgaon, Andheri
(E) Mumbai;
b) that pending the hearing and final disposal
of this suit any construction activities in view of
the IOD dated 18-10-2007 CC dated 18-10-2007
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and sanctioned plan dated 19 July, 2007 on CTS
No. 82 situated at Moolgaon, Andheri (E) Mumbai
be stayed in the interest of justice.”
5. In the said suit, the appellants took out a notice of motion for grant
of injunction for the following terms:
“(a) the pending the hearing and final disposal of
this suit, any construction activities in view of the
IOD dated 19.07.07 CC dated 08.02.08 and
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sanctioned plan dated 19 July, 2007 on CTS No.
82 situated at Moolgaon, Andheri (E), Mumbai be
stayed in the interest of justice.”
6. The learned Trial Judge by an order dated 16.02.2009 opined that as
the appellants failed to obtain an essentiality certificate and C.T.S. No. 61
was not declared as slum area, the question of taking recourse to the slum
rehabilitation scheme did not arise. It was, however, held:
“…I find much substance in the submissions made
by the ld. Advocate for defendant that no
residential premises can be constructed on C.T.S.
No. 82 as it comes under the commercial zone and
there is permission in respect of the construction of
commercial premises only on C.T.S. No. 82 by the
Municipal Corporation and as performance of the
agreement between the defendants and slum
dwellers cannot be specifically enforced, the
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reliefs as prayed in the notice of motion cannot be
granted…”
7. An appeal preferred thereagainst before the High Court has been
dismissed by reason of the impugned judgment.
8. Mr. V. Shekhar, learned senior counsel appearing on behalf of the
appellants, would contend that the City Civil Court and consequently the
High Court committed a serious error in holding that no residential
building could be constructed on C.T.S. No. 82. In this connection, our
attention has been drawn to a letter dated 8.05.2009 issued by the
Municipal Corporation of Greater Mumbai addressed to the Secretary,
Durga Nagar Rahiwasi Sangh that in case constructions of the buildings
are not commenced, the permission can be modified in terms of
Regulation 57(4)(C) of Development Control Regulations, 1991 and in
that view of the matter as construction of a residential building is not
prohibited by law, the provisions of Section 41(e) of the Specific Relief
Act will have no application.
9. Mr. Sunil Gupta, learned senior counsel appearing on behalf of the
respondents, on the other hand, objected to consideration of the additional
document, viz., the letter dated 8.05.2009, on the premise that the same
was procured subsequent to the passing of the impugned order.
10. Appellants are said to have been in possession of the property in
question as trespassers. They are said to have acquired indefeasible title
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thereto by alleged possession for more than 30 years. It is not in dispute
that for the purpose of attracting the rehabilitation scheme the area in
question should be declared as a slum area. It is only for the said purpose,
the appellants were required to obtain eligibility certificate. Grant of
eligibility certificate was, thus, sine qua non for enforcement of the
agreement dated 26.06.2005. As Clause 3 of the said agreement
categorically provides that in case the occupants fail to get such
certificate, the agreement would ipso facto come to an end and the
occupants would have no right against the party of the other part, we are
of the opinion that the High Court cannot be said to have committed any
legal infirmity in passing the impugned order.
11. Respondents contend that as the eligibility certificate has not been
obtained by the appellants, the agreement itself has come to an end. A
finding to that effect has concurrently been arrived at by both the courts
below.
12. Furthermore, indisputably, 66 persons were occupying the same
plot No. 61. The suit, however, has been filed by 33 persons. The rest 33
persons, thus, have accepted that they had no right under the agreement.
Consent of the appellants for their rehabilitation on C.T.S. No. 82,
whereupon strong reliance has been placed by Mr. Shekhar, in our
opinion, is not of much significance. The consent on the part of the
appellants was merely one of the terms of the contract. But, if in absence
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of any eligibility certificate, C.T.S. No. 61 could not be declared to be a
slum area, the scheme of rehabilitation and/ or relocation of the occupants
thereof, in our opinion, would not arise.
13. We will assume that in terms of Regulation 57(4)(C) of the
Development Control Regulations, 1991 modification in the matter of
nature of construction was permissible in law.
It is one thing to say that such modification can be directed to be
granted but it is another thing to say that unless such an order is obtained,
the occupants of the land would not be entitled to raise any construction
other than the one provided for in the regulations itself.
14. The learned City Civil Court has categorically held that only
commercial constructions could be raised on C.T.S. No. 82. The parties to
the agreement did not file any application for modification of that plan.
So long such modification is not granted, in our opinion, the restriction
noted by the courts below shall remain operative. It is in that sense
statutory interdict shall have a role to play in terms whereof the
respondents could not be permitted to raise constructions for residential
purposes.
15. In any event, we, however, must notice that the appellants herein
had merely filed an application for bringing the additional document on
record. Indisputably, the said document was not filed before the City
Civil Court. It was, therefore, obligatory on the part of the appellants to
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file an application for permission to file the said document by way of
additional evidence in terms of Order XLI Rule 27 of the Code of Civil
Procedure. The Supreme Court Rules prohibit placing reliance upon any
document which was not part of the records of the courts below, save and
except with the permission of the court.
16. A court of law before passing an order of injunction must take into
consideration three relevant factors, viz., prima facie case, balance of
convenience and irreparable injury.
This Court in Bombay Dyeing & Manufacturing Co. Ltd. V.
Bombay Environmental Action Group and Others [(2005) 5 SCC 61] held
as under:
“22. This Court at this stage is concerned with an
interim order passed by the High Court. The writ
petition is still to be heard. Affidavits between the
parties are yet to be exchanged. The objection as
regards maintainability of the writ petition is also
required to be finally determined by the High
Court itself. This Court at this stage cannot, thus,
enter into all the contentious questions raised in
these appeals. But, there cannot be doubt or
dispute whatsoever that before an interim order is
passed and in particular in a public interest
litigation, the court must consider the question as
regards existence of a prima facie case, balance of
convenience as also the question as to whether the
writ petitioners shall suffer an irreparable injury, if
the injunction sought for is refused. The courts
normally do not pass an interlocutory order which
would affect a person without giving an
opportunity of hearing to him…”
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[See also Mandali Ranganna and Ors. etc. v. T. Ramachandra and
Ors. (2008) 11 SCC 1 and Shridevi and Anr. V. Muralidhar and Anr. 2007
(12) SCALE 234]
17. Furthermore, when a court exercises its discretionary jurisdiction,
the appellate court would be slow to interfere therewith unless sufficient
and cogent reasons exist therefor.
In Manjunath Anandappa v. Tammanasa [(2003) 10 SCC 390], this
Court held:
“36. It is now also well settled that a court of
appeal should not ordinarily interfere with the
discretion exercised by the courts below.
37. In U.P. Coop. Federation Ltd. v. Sunder Bros.
the law is stated in the following terms: (AIR
p. 253, para 8)
“8. It is well established that where the discretion
vested in the court under Section 34 of the Indian
Arbitration Act has been exercised by the lower
court the appellate court should be slow to
interfere with the exercise of that discretion. In
dealing with the matter raised before it at the
appellate stage the appellate court would normally
not be justified in interfering with the exercise of
the discretion under appeal solely on the ground
that if it had considered the matter at the trial stage
it may have come to a contrary conclusion. If the
discretion has been exercised by the trial court
reasonably and in a judicial manner the fact that
the appellate court would have taken a different
view may not justify interference with the trial
court’s exercise of discretion. As is often said, it is
ordinarily not open to the appellate court to
substitute its own exercise of discretion for that of
the trial Judge; but if it appears to the appellate
court that in exercising its discretion the trial court
has acted unreasonably or capriciously or has
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ignored relevant facts then it would certainly be
open to the appellate court to interfere with the
trial court’s exercise of discretion. This principle is
well established; but, as has been observed by
Viscount Simon, L.C., in Charles Osenton & Co.
v. Johnston, AC at p. 138:
‘The law as to the reversal by a court of appeal of
an order made by a Judge below in the exercise of
his discretion is well established, and any difficulty
that arises is due only to the application of well-
settled principles in an individual case.’ ”
18. For the reasons aforementioned, there is no merit in this appeal
which is dismissed accordingly with cost. Counsel’s fee assessed at Rs.
10,000/-.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Deepak Verma]
New Delhi;
July 21, 2009