Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1973 OF 2019
( A RISING OUT OF SLP (C) 15944 O F 2018)
ULLU AS INCE ECEASED PPELLANT
L V (S D ) …A (s)
THROUGH LR S
V ERSUS
S TATE OF M AHARASHTRA & O RS . …R ESPONDENT ( S )
ITH
W
C ONTEMPT P ETITION (C) N O . 123 OF 2019 IN SLP (C) 15944 O F
2018
L ULLU V AS (S INCE D ECEASED ) …A PPELLANT (s)
THROUGH LR S
V ERSUS
EVCHAND IRAJI AGHMARE LLEGED ONTEMNOR S
D P W …A C ( )
RS
& O .
JUDGMENT
AMANA
N.V. R , J.
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2019.02.22
16:38:13 IST
Reason:
1. Leave granted.
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2. The present appeal arises out of the impugned judgment dated
07.06.2018, passed by the High Court of Judicature at Bombay in
Writ Petition No. 1507 of 2011 with Notice of Motion No.206 of
2018, wherein the High Court allowed the Writ Petition preferred
by the respondent nos. 4 and 5 and set aside the order of the
HighPower Committee ( hereinafter referred to as “ HPC ” ) dated
5.02.2011 along with the consequential orders of the Slum
Rehabilitation Authority ( hereinafter referred to as “ ” )
SRA
(respondent no. 3). Further, the High Court also directed
respondent no. 3 to undertake necessary actions for the
redevelopment of the suit property.
3. Brief facts necessary for the adjudication of the case are as follows:
The Government of Bombay acquired the disputed property (now
Worli Estate Scheme No. 58) prior to 1945, and vested the same in
the Municipal Corporation of Greater Mumbai ( hereinafter referred
to as “ ” ). Thereafter, on 04.06.1945, the appellants’
MCGM
predecessorininterest, Lullu Vas, submitted an application to the
MCGM seeking lease of the said land for residential purposes and
paid an earnest money of Rs. 8,232. The appellants contend that
the MCGM decided to give leasehold rights in perpetuity to Lullu
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Vas. At that time, about 70 slum structures were preexisting on
the said land. Since Lullu Vas demanded possession, on
05.11.1965, the MCGM handed over symbolic possession of the
said plot on “as is where is basis” when it was still occupied by
the encroaching hutments.
4. In 1971, the Maharashtra Slum Areas Act ( hereinafter referred to
as “ Slum Act ”) was enacted. Subsequently, in 1976 photopasses
were issued to the slum dwellers who were residing in the disputed
area and the said area attained the status of the declared slum,
entitled for redevelopment under Regulation 33 (10) of the
Development Control Regulations read with the provisions of the
Slum Act.
5. In 1996, the slum dwellers residing on the said land formed a co
operative housing society “New Sagar Vihar” (respondent no. 4)
and submitted a proposal for slum rehabilitation to the SRA, and
the same was approved by issuing a Letter of Intent ( hereinafter
“ ”) and an Intimation of Approval (
referred to as LoI hereinafter
referred to as “ IoA ”) on 16.06.1999. In furtherance of the above, a
commencement certificate was issued on 13.10.1999 and
respondent no. 4 appointed a developer (respondent no. 5) and
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promoter for the implementation of the slum rehabilitation scheme
and to build new flats.
6. Meanwhile, Lullu Vas and her family started residing outside
India. Lullu Vas expired on 04.02.1997. In 2008, Mr. Shailesh
Chheda, who claimed that he was the general power of attorney
holder of the appellants (legal representatives of Lullu Vas), filed
W.P No. 2714/2008 before the High Court against the State of
Maharashtra and six others challenging the order of the SRA dated
16.06.1999 whereby the SRA had issued the LoI and IoA to
respondents no. 4 and 5. The writ petition was withdrawn vide
order dated 17.12.2008, with liberty to the appellants to file a
representation before the HPC.
7. Mr. Shailesh Chheda thereafter approached the HPC in Appeal No.
148 of 2008, seeking quashing of the order dated 16.06.1999
granting LoI in favour of the respondents no. 4 and 5. The HPC,
upon hearing the parties, vide order dated 20.06.2009 concluded
that the land belonged to the respondent no. 3 (MCGM) and the
appellants are lessees for 999 years. However, as the LoI had
lapsed and respondents no. 4 and 5 had filed a separate
application for revalidation of the LoI dated 16.06.1999 before the
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SRA, the HPC directed the SRA to hear both the parties and pass
orders on the merits of the case. It may be noted that the aforesaid
first order of the HPC has not been challenged by the
Respondents.
8. Vide order dated 23.08.2010, the CEO, SRA, after hearing both
sides, revalidated the LoI in favour of the respondents no. 4 and 5.
The above order of revalidation by the SRA was challenged by the
appellants in Appeal No. 2 of 2011 before the HPC. This appeal
was allowed by order dated 05.02.2011 and consequently, the
order of the CEO, SRA dated 23.08.2010, was set aside.
Consequently, vide order dated 06.09.2013, the SRA allowed the
application preferred by the appellants seeking to record the
scheme.
9. Subsequent to the aforesaid order of the SRA, respondent no. 2
(MCGM) issued letter dated 17.01.2015 withdrawing/cancelling its
earlier orders, decisions and communications which were claimed
as acceptance of the claim of late Lullu Vas as lessees, observing
that the claims were founded upon erroneous representation
based on legally inadmissible documents. It was found that not
only were the lease documents invalid for want of adequate seal
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and signature, but also that the appellants had failed to make any
effort to remove the encroachments. Moreover, in the absence of a
registered lease deed, neither the original applicant nor the
appellants herein have any rights whatsoever in the disputed
property.
10. Aggrieved, the appellants filed LC Suit No. 456 of 2016 in the City
Civil Court, challenging the aforesaid letter dated 17.01.2015
issued by respondent no. 2 to be illegal and void. Additionally, the
appellants also sought for a declaration that they are the lessees of
MCGM. It is to be noted that this suit is still pending final
adjudication. In the said suit, the appellants had filed Notice of
Motion No. 1110 of 2016 seeking temporary injunction against the
respondents from obstructing or disturbing the appellants’
possession. Vide order dated 07.03.2018, the Notice of Motion was
partly allowed and the respondent no. 2 and 4 were temporarily
restrained, pending suit, from acting upon or implementing the
decision/communication dated 17.01.2015.
11. In the meantime, in 2011, respondents no. 4 and 5 filed Writ
Petition No. 1507 of 2011, which is the subject matter of challenge
before us. By way of this Writ Petition, respondents no. 4 and 5
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challenged the second order passed by the HPC dated 05.02.2011
cancelling the LoI issued in their favour. Subsequent to the order
dated 07.03.2018 in Notice of Motion No. 1110 of 2016 in LC Suit
No. 456 of 2016 wherein the temporary injunction was granted in
favour of the appellants, the respondents no. 4 and 5 preferred
Notice of Motion No. 206 of 2018, seeking stay of the order dated
05.02.2011 in Appeal No. 2 of 2011 before the HPC.
12. Vide order dated 07.06.2018, the court disposed of the Writ
Petition filed by respondents no. 4 and 5 by setting aside the order
of the HPC dated 05.02.2011, and quashing and setting aside the
consequential orders or letters of the SRA dated 06.06.2011 and
06.09.2013.
13. The High Court, while disposing of the Writ Petition, observed that
at the time the application was preferred by Lullu Vas, the
disputed property was already encroached upon by slum dwellers.
The numbers of these slum dwellers kept on increasing due to the
inaction of the appellants. In light of the same, the appellants’ plea
seeking execution of the lease in their favour stood frustrated and
the appellants therefore could not object to the redevelopment of
the said land. Moreover, the slum dwellers agreed to join the
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rehabilitation scheme and 70% of the dwellers appointed
respondent no. 5 as their developer in compliance with Clauses
1.11 and 1.15 of AppendixIV of the Development Control
Regulations. On the other hand, the appellants failed to show any
such compliance. Furthermore, taking into account the delay in
implementation of the rehabilitation scheme, the High Court
rejected the appellants’ plea seeking a stay on the redevelopment.
Aggrieved by the aforesaid impugned order, the appellants have
preferred this Special Leave Petition.
14. The learned Senior Counsel on behalf of the appellants, Dr. A. M
Singhvi, submitted that the High Court was not justified in holding
that there is no lease granted in favour of the appellants despite
the letter dated 22.07.1976 and the subsequent correspondence
confirming the lease granted in perpetuity in favour of the
appellants. On the contrary, the appellants have the best rights of
lease in their favour as the corporation itself has recorded the
names of the appellants as lessees, as has the estate department.
Further, the corporation has failed to prove that the appellants
have breached any terms of the lease agreement. Additionally,
respondent no. 2, who has failed to clear the encroachments,
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should not be allowed to benefit from its inaction. Therefore, the
said land is validly vested upon the appellantslessees, and being
private land, the Slum Act cannot be enforced on the same. The
learned counsel also contended that the LoI obtained by
respondents no. 4 and 5 was obtained on the false representation
that the State of Maharashtra was the real owner of the property.
The learned counsel stated that the order passed by the HPC in
favour of the appellants, which has attained finality, as well as the
order of the Trial Court dated 07.03.2018, wherein the Notice of
Motion filed in LC Suit No. 456 of 2016 was partly allowed and the
respondent no. 2 was temporarily restrained, strengthens the
presumption of primafacie case in their favour. The counsel for
appellants rested his submissions by stating that not granting
protection at the present stage will make the pending civil suit
infructuous.
15. On the contrary, the learned Senior Counsel Mr. Shekhar
Naphade, appearing for respondent no. 3 (SRA), submitted that the
appellants have no locus as they, being prospective lessees, do not
have any interest in the property. In the present case, the land
owning authority is the municipality, and hence the appellants
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have no role to play. Even if they had any semblance of a right in
equity, it stands extinguished by the application of specific
provisions of the Slum Act which, being a welfare legislation, takes
precedence over the rights of the appellants and gives the
government the power to acquire property in the slum
rehabilitation area. Furthermore, the Slum Act also empowers the
competent authority to declare a certain area as a slum
rehabilitation area. The statute itself gives preferential rights to
the society of the slum dwellers by providing that where 70 % or
more of the eligible hutmentdwellers in a slum agree to join a
rehabilitation scheme, it may be considered for approval. Hence,
the entire statutory scheme cannot be frozen at the instance of the
appellants and a statutory authority cannot be injuncted from
performing its duty. Moreover, in the pending civil Suit being LC
Suit No. 456/2016 before the City Civil Court, preferred by the
appellants seeking a declaration that they are lessees, they have
not made respondent no. 3 (SRA) a party to the suit, although the
injunction sought is intended against the SRA. Moreover, any
declaration made therein may bind respondent no. 2 (MCGM), but
not the SRA. The counsel rested his argument by stating that the
prolongation of this dispute is contrary to public interest.
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16. Learned Counsel Mr. A.N. Nadkarni, Additional Solicitor General
appearing on behalf of respondent no. 2 concurred with the
submissions made by Mr. Naphade, wherein he averred that the
appellants do not have any locus as they have no interest in the
said property. Mr. Nadkarni further submitted that the appellants
do not have any right in the suit property, be it factual or legal. In
order to substantiate his claim, the counsel relied upon Section
107 of the Transfer of Property Act, 1882, which mandates that a
lease of immovable property for a period exceeding one year should
be registered. He also relied on Sections 70 and 71 of the Mumbai
Municipal Corporation Act, 1888 ( hereafter ), which
Municipal Act
prescribe the mode of executing contracts and indicate that any
contract made in contravention to the same shall not be binding
on the corporation. However, the appellants have not complied
with any of the aforesaid provisions. Moreover, the physical
possession was never vested on the appellants as the land was
encroached upon by the slum dwellers. Hence, the entire purpose
of the lease stood completely frustrated. Further, the Slum Act
being a special statute enacted for redevelopment of the slum
areas takes precedence over the Municipal Corporation Act. The
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counsel submitted that once the SRA comes into the picture, the
MCGM vanishes as the entire management will be taken up by the
SRA. In the absence of any established interest over the suit
property, the appellants may be entitled for the grant of certain
damages only. In the present case, public interest takes
dominance over the halfbaked rights of the appellants.
17. Learned Senior Counsel Mr. Shyam Divan , appearing on behalf of
respondent no. 4 submitted that respondent no. 4 (society) has a
membership of 106 slum dwellers. It is the statutory right of the
respondent no. 4 (society), acting in furtherance of the interest of
the slum dwellers to be rehabilitated in situ, to selecting the
developer through which they will implement the scheme. The
respondent no. 4 Society has the overwhelming support of more
than 70% of the slum dwellers for the implementation of the SRA
Scheme. On the contrary, the appellants have not applied for any
rehabilitation scheme nor is there anything on record to show that
they are supported by 70% of the hutment dwellers so as to
redevelop the said land. There is already a pending civil suit being
LC Suit No. 456 of 2016, wherein the appellants sought for the
specific performance of the lease agreement based on the
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application of allotment dated 04.06.1945, which is hopelessly
time barred as the same was preferred after 71 years. Lastly, the
appellants have not accrued any rights in their favour as there is
no registered document. The court should decide the matter on
the balance of convenience as granting the relief to the appellants
will be tantamount to defeating the object of the Slum Act which
provides the slum dweller the right to seek for in situ
rehabilitation. Any relief in favour of the appellants will cause
hardship to the slum dwellers whose accommodation have been
demolished for redevelopment.
18. Learned Senior Counsel Mr. Kapil Sibal, appearing on behalf of the
developers submitted that respondent no. 5 (developer) has the
consent of 70% of the slumdwellers, which is a mandatory
requirement under the Development Control Regulations. On the
contrary, neither does the Power of Attorney provide for the
development of the slum nor have the appellants submitted a
proposal for the redevelopment scheme. Further, pursuant to its
contractual obligations, respondent no. 5 has incurred a huge
expenditure on the shifting of the slum dwellers and demolition of
the existing structures, as they have provided alternate
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accommodation on rental basis by paying an amount of Rs.
8,000/ monthly. Lastly, the learned Senior Counsel has
contended that no measures can be enforced against them, as they
have not been arrayed as a party in the civil suit.
19. Learned Senior Counsel Mr. Basava Prabhu Patil, counsel on
behalf of 83 hutment dwellers being intervenors herein, submitted
that I.A No. 167398/2018 and I.A No. 173077 of 2018 have been
filed by 82 slum dwellers who have executed individual affidavits
in support of the implementation of the SRA Scheme being
implemented by respondent nos. 3 to 5. In total, respondent no. 4
society comprises of 106 hutments. The intervenors state that
97.16%, i.e. , 103 dwellers out of 106 dwellers support the
implementation of the SRA Scheme.
20. Learned Senior Counsel Mr. Niraj Kishan Kaul appearing on
behalf of 26 hutment dwellers being intervenors herein, while
supporting the appellants, submitted that 26 individual
applications have been filed by these slum dwellers, who are
challenging the fundamental basis of the claim, i.e. , 70% of the
dwellers supporting the respondent nos. 3 to 5. The main
contention of the learned Senior Counsel was that the consent of
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70% should be proved from the time of the initiation itself, that is
from the date of the implementation of the scheme. But the same
has not been complied with. In this regard, there is a lack of
proper scrutiny.
21. Per contra , the counsels on behalf of the respondents stated that
the slum dwellers have no right to be impleaded in this SLP as a
party. They did not raise any grievance during the pendency of the
Writ Petition before the High Court. Further, there exists a specific
mechanism for the redressal of grievances under Section 35 of the
Slum Act, but the same has not been resorted to. Lastly, it was
brought to our notice that of the 26 slum dwellers, constituting the
second set of intervenors, 18 have withdrawn their support and
are now favouring the SRA for the implementation of the scheme.
22. Even though the parties have argued at length and produced
multiple documents regarding the leaseholding rights in dispute,
at the outset, we would like to clarify that at this stage of litigation
we are not inclined to attempt to resolve conflicts of evidence on
affidavit or to decide questions of law on merits which call for
elaborate arguments or detailed scrutiny, as these issues are the
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subject matter of the trial. The aforesaid contentions raised by the
parties are to be resolved during the trial.
23. Heard the learned counsels for the parties.
24. Considering the pending civil suit before the trial court, the limited
question before us is whether the impugned order passed by the
High Court, allowing the respondents to proceed with the
redevelopment of the land, can be sustained in the eyes of law.
25. The adjudication of the dispute before us has to be based on
principles of equity. The party seeking the remedy has to make out
a prima facie case on merits, and has to satisfy the court that
there is some basis to its claim regarding the existence of his right.
Further, the court must balance the comparative hardship or
mischief which is likely to occur from withholding the relief,
against that which would likely arise from granting it. It has to be
further established that noninterference by the court would result
in “irreparable injury” to the party seeking relief and that there is
no other remedy available to the party except to grant the relief
sought.
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26. In the present case the genesis of the appellants’ right is a lease
which was allegedly entered into between the appellants’
predecessor in interest and MCGM, which allegedly accepted the
application and the premium amount on 17.11.1965. Respondent
no. 2 has vehemently denied the existence of any lease on the
ground that mere filing of an “application” and an endorsement
made thereunder of its acceptance does not result in a “concluded
contract” which creates any right. Further, counsel for respondent
no. 2 averred that the original application can only be treated as
an “offer to enter into a lease” and the amount paid i.e., Rs.8,232,
was only in the nature of earnest money. Respondent no. 2 further
contended that in any event, the offer which allegedly came to be
accepted on 05.11.1965 was not in the required form as prescribed
under the Municipal Act. Respondent no. 2 has also vehemently
argued that Section 70 of the Municipal Act was not complied with
as the said document has neither been duly sealed nor does it
have the signature of the competent authority. Therefore,
respondent no. 2 submitted that as per the provisions of Section
71 of the Municipal Act the said lease is not binding upon the
corporation.
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27. It may be noted that the very basis of the appellants’ right, i.e. , the
lease deed, is itself disputed as there exists no registered
document to that effect. It is pertinent to note herein that the
appellants have taken the plea that by paying consideration
towards the leasehold rights they now have a vested interest over
the suit property. Hence, without any alleged violation of the
conditions of the lease, the appellants claim that the revocation of
their rights by the respondent no. 2 is malafide . In order to
substantiate their claim, the appellants have averred that the
name of the appellants appears in the records of the Estate
Department as the lessees. Furthermore, our attention has been
drawn to the fact that the first order of the HPC, dated 20.06.2009,
declares the appellants to be lessees for 999 years. As the
aforementioned order has not been challenged by the respondents,
it has now attained finality. However, bearing in mind that this
very issue is the subject matter of the pending civil suit, we refrain
from making any observations regarding the same.
28. While taking into consideration the rights of the appellants, we
must also not lose sight of the fact that the Slum Act is a beneficial
legislation meant to ameliorate the poor condition of slum
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dwellers. ( See Balasaheb Arjun Torbole v. Administrator and
, ). The legislative
Divisional Commissioner. (2015) 6 SCC 534
purpose behind this enactment is to provide statutory protection
to the rights of slum dwellers in furtherance of their fundamental
right to shelter and other basic amenities, enabling them to lead a
dignified life as reflected in the Constitution. As such, where the
rights of the appellants need to be analysed in light of the Slum
Act, it is necessary to balance the interests of the appellants with
that of the slum dwellers. In the present case, the slum dwellers,
who are the primary beneficiaries of the redevelopment scheme,
are not only at risk of losing their shelter, but also their means of
livelihood.
29. The averments made by the respondents reveal that pursuant to
the implementation of the Slum Act, more than 70% of the slum
dwellers formed respondent no. 4 (the housing society) and sought
rehabilitation on the site in furtherance of their statutory rights.
Further, respondent no. 5 has averred that demolition of the
existing structures has already been initiated and the shifting of
the slum dwellers is ongoing. The respondent no. 5 has brought to
our notice that alternate accommodation for the slum dwellers has
19
been arranged on a rental basis. But, owing to the ongoing
litigation over the suit property, redevelopment has been pending
for more than eight years. It is to be noted that ultimately it is the
slum dwellers who are suffering. There is nothing on record to
show that they have the support of 70% of the slum dwellers as
mandated by the statute. 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
cannot be remedied. In a situation such as this, where rights of
the parties have not yet crystalized, and no irreparable injury can
accrue to the plaintiff pending trial, the entire case then revolves
around the principles of comparative convenience.
30. The balance of convenience in the present case tilts in favour of
the respondents, as the completion of the scheme is in greater
public interest. However, it is noteworthy to observe that the
appellants have vehemently contended that they have paid
consideration in exchange of the leasehold right which is the
subject matter of the trial. In order to substantiate their claim, the
appellants have produced multiple documents on records, the
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genuineness of which is seriously doubted by the respondent
authorities.
31. The main grievance of the appellant’s counsel is that in case they
succeed in the trial, they may not be placed in a position to enjoy
the benefits arising out of the suit property. The counsel
contended that their interest can be protected only if respondent
no. 5 (developer) is injuncted from disposing of 50% of the free
saleable area.
32. It is to be noted that no material was produced before us so as to
ascertain the quantum of damages that may have accrued to the
appellants. Further, we cannot prohibit respondent no. 5 from
disposing of the free saleable area, as it is only performing its
contractual obligations and cannot be penalized for any
irregularity committed by the respondent authorities. A specific
averment has been made by respondent no. 2 that, in the event
the appellants succeed before the trial court, they shall be entitled
to adequate damages.
33. Taking into consideration the facts and circumstances of the case,
we grant the appellants the liberty to make such a prayer,
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supported by relevant materials, before the trial court in the
pending suit being LC Suit No. 456 of 2016. Further, the
appellants are granted the liberty to implead necessary parties
before the trial court. The trial court is at liberty to consider such
relief in accordance with law.
34. In view of the pending civil suit, any observation made by the High
Court which affects the merit of the matter is hereby set aside. Any
observations made herein shall not act in prejudice against the
appellants during the trial on merits.
35. The appeal is disposed of in the aforesaid terms. In light of this
Judgment, it is not necessary to pass any orders in the Contempt
Petition no. 123 of 2019 preferred by the appellants, which hereby
stands disposed of. Pending applications, if any, shall also stand
disposed of.
……………………………..J.
( N. V. Ramana )
……………………………..J.
( Mohan M. Shantanagoudar )
N EW D ELHI ,
F EBRUARY 22, 2019.
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