1 AOST13797.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER (ST) NO.13797 OF 2011 WITH CIVIL APPLICATION (ST) NO.13798 OF 2011 KJ Shri Ram Shairas Bajrangilal Dhobi & Ors. )..Appellants Vs. MHADA & Ors. )..Respondents ---- Mr.Rajesh Singh for the appellants. Mr.P.G.Lad for respondent no.1. Mr.S.V.Kadam i/by Kadam & Co. for respondent no.2. ---- CORAM : MRS.MRIDULA BHATKAR,J (VACATION JUDGE) DATE : 11/5/2011. PC 1 The appellants have challenged the order dated 4.5.2011 passed by the City Civil Court, Mumbai wherein the ad-interim relief prayed by the present appellants/original plaintiffs was refused. The appellants are washermen by occupation and they are using Dhobi-ghat on the plot no.197, village Kale wadi, Parel, Mumbai. On the same plot structures are standing and nearly 400 families are residing. As the buildings were in dilapidated 2 AOST13797.11.sxw condition, 70 percent occupants/tenants gave consent for the re- development of those structures and therefore, MHADA has issued NOC and the construction is in progress. 2 Out of 19 appellants/original plaintiffs, 14 are residing in the building standing thereon and they have entered into a necessary agreement with the respondents for the tenements in the newly constructed building in respect of residential area. However, the respondent no.2 did not enter into a separate agreement with the washermen in respect of Dhobi-ghat where they are washing their clothes. As a part of re-development scheme, the respondents have constructed new Dhobi-ghat with a view to rehabilitate the appellants by providing them a place to run their business. 3 The respondents have constructed 5 buildings and now 2 buildings have remained to be constructed, for which, the area occupied by Dhobi-ghat is required. The appellants are not willing to shift their business to the newly constructed Dhobi-ghat and therefore, it causing obstruction to the respondents to construct 3 AOST13797.11.sxw the 2 buildings. The respondents therefore, issued notice dated 5.4.2011 under Section 95-A of MHADA Act to the appellants for summary eviction. The appellants replied to the notice by letter dated 8.4.2011. Thereafter, MHADA refused to withdraw the said notice and therefore, the said action of MHADA was challenged by the appellants before the City Civil Court, Mumbai, in which ad- interim relief was rejected. 4 Learned Counsel for the appellants has raised the main contention that Dhobi-ghat being a non-cessed area, MHADA Act cannot be applied to, hence action taken for summary eviction under Section 95-A of the Act is illegal. This being a legal issue, it needs to be adjudicated at length and so during the vacation of the Court, ad-interim stay is to be granted. He further submitted that portion of the plot is reserved for Dhobi-ghat where the Dhobi-ghat exists now and no construction can be made on it. He further submitted that condition nos.24 & 25 of NOC dated 10.5.2010 in the agreement are not followed by the respondents and as per those conditions it was binding on the respondents to enter into a 4 AOST13797.11.sxw separate agreement with the washermen in respect of their particular places at Dhobi-ghat and without such agreement, the washermen cannot be rehabilitated. 5 Learned Counsel for the respondent nos.1 & 2 oppose this application basically on the ground that the appellants have no right to ask for a separate agreement and this step is taken by the appellants just to stall the development which is rigorously in process and only 2 buildings are remained to be constructed. Learned Counsel further submitted that it is a question of 400 families who are roofless and the piling & foundation of these two buildings are required to be completed before monsoon. 6 It is not disputed that the Dhobi-ghat is non-cessed structure and it is also not disputed that MHADA has not entered into any agreement with washermen in respect of Dhobi-ghat. On the point of applicability of MHADA Act to non-cessed building and power of MHADA to take action of summary eviction under Section 95-A of the MHADA Act, my attention is drawn to the 5 AOST13797.11.sxw decision of this Court. This Court had an occasion to deal with the similar issue in Appeal from Order No.67 of 2010 along with Civil Application (ST) No.26653 of 2009 dated 9/3/2010. In paragraph-9 it is observed as follows :- “ The NOC granted by the MHADA under Regulation 33(7) is for redevelopment of the entire plot of land. It does not make any distinction between the cessed and non-cessed structures. Besides, the provisions of Section 95A are unambiguous. Any person who obstructs a redevelopment scheme can be evicted summarily by the MHADA under Section 95A, provided all other conditions have been complied by the developer.” 7 The plot is necessarily to be considered as a whole when the development activity is carried out and therefore, the portion of the Dhobi-ghat cannot be separated because it is non-cessed. The submissions that MHADA Act cannot be applicable to non-cessed structure which is a part and parcel of the plot and is under development by MHADA is a misconception of Law. 8 Learned Counsel for the appellants has relied on the judgment in the case of Bharat Kanakia & Anr. Vs. Mumbai Building Repairs & Reconstruction Board (MHADA Unit) & Ors reported in 2006(1) ALL MR 361, especially he relied on paragraph-7 of the said ruling. In the 6 AOST13797.11.sxw said case MHADA has passed the order under Section 103 J of the MHADA Act and it was challenged being without jurisdiction. While dealing with the action taken under the said provision, this Court has made certain observations in respect of Section 95-A of the Act that sub- section 2 of Section 95-A applies only to the property of the Board and not to the private property. However, in the present case the property of Dhobi-ghat is not a private property of the petitioners and therefore, on that ground the action taken by MHADA under Section 95-A cannot be brought within the ambit of the ratio of the Judgment in Bharat Kanakia (supra). The facts of the said case are different and distinguishable. 9 In the present matter, wherein consent of 70% of the occupants are obtained and NOC was given. Out of 19 appellants, 14 appellants are parties to the consent for their residential premises. However, residential premises cannot be constructed unless the entire plot is re-developed. Therefore, appellants at the same time cannot blow hot & cold and stall the project. 10 Secondly, the respondents have constructed new Dhobi-ghat for the appellants, on which the learned trial Judge has given his finding in 7 AOST13797.11.sxw details after perusing the photographs of the new Dhobi-ghat. Today, in the present Dhobi-ghat, there are 26 inlets and the same number of inlets are available in new Dhobi-ghat. 14 appellants cannot be treated as occupants but they are the users of the Dhobi-ghat and therefore, no separate agreements can be entered into with them as per clauses-2 & 3 of the NOC. Therefore, it appears that the appellants have no case to grant ad-interim relief from this Court. Hence, rejected. 11 Learned Counsel for the appellants prays to stay the order. Learned Counsel for the respondents opposes this prayer. In all fairness, to give opportunity to the appellants to challenge this order in the higher Court, operation of this order is stayed up to 18.5.2011. . The appellants shall give two days notice in advance to the respondents before challenging this order. (MRS.MRIDULA BHATKAR,J)