NMS2158-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2158 OF 2009 IN SUIT NO.1236 OF 2009 Smt. Paniben Mangilalji Jain & Ors. .. Plaintiffs Versus Mumbai Municipal Corporation & Ors. .. Defendants Dr.Birendra Saraf with Mr.Subhash Jadhav i/b. ALMT Legal for plainiffs Mr.S.G.Surana for defendant No.3 Mr.D.H.Mehta i/b. C.N.Gole for defendant No.4 Mr.J.G.Reddy for defendant No.2. CORAM : S.C.DHARMADHIKARI, J. DATE : 15th November 2010. P.C.: 1] Heard Mr.Saraf for plaintiff, Mr.Suvarna for contesting defendant so also Mr.Mehta for developer and Mr.Reddy for Slum Rehabilitation Authority (SRA). The plaintiffs have filed this suit for a declaration that they are the owners of the suit property being the land bearing C.T.S. No.862, 862 (1 to 28) C.T.S.1, C.T.S.No.1/ 1 to 130 equivalent to Survey No.100, Hissa No.1 admeasuring 4826 NMS2158-09 2 sq.yards. This property is described in schedule to the conveyance annexed as Exh.A to the plaint. 2] Plaintiffs' claim that their father Mangilal Shah had purchased this land under a registered conveyance dated 31st October 1961. 3] Mr.Saraf invites my attention to a copy of the conveyance deed and the schedule thereto and the property register cards. He submits that the property admeasures about 4826 sq.yards. 4] Although, Mr.Saraf would admit that there is auction of the property for non payment of municipal taxes allegedly, yet, in his submission, the sale certificate issued by the Corporation after warrant was executed is for an area admeasuring 3437.50 sq.mtrs. Mr.Saraf, therefore, submits that the balance area cannot be claimed by anybody much less Slum Rehabilitation Authority and through it Cooperative Housing Society of Slum dwellers so also the developers. Therefore, atleast to the extent of the balance are as claimed by the plaintiff there NMS2158-09 3 should be an appropriate interim order. He submits that balance of convenience is in favour of plaintiff, to this extent atleast and irreparable loss and injury will be caused in case this area is also allowed to be used and exploited under the SRA scheme. 5] On the other hand, the contesting defendants point out that the property was sold in an auction conducted by the Municipal Corporation way back in 1984. Thereafter, plaintiffs have not taken any steps although they were aware of the auction sale. It is only when the encroachment on the property were sought to be brought within the purview of the slum rehabilitation scheme, after the slum dwellers/ occupiers formed and registered a cooperative housing society, that the plaintiffs have woken up and made a false claim. That the plaintiffs’ claim is false is clear, according to the contesting defendants, because documents issued by the SRA show that the area statement was tentative. The measurements were not finalised and the final Letter of Intent (LOI) dated 1st April 2009 issued by the SRA correctly computes the area under the SRA scheme as 4440 sq.mtrs. NMS2158-09 4 For all these reasons, there is no merit in this motion and it should be dismissed. 6] With the assistance of the learned Counsel appearing for parties, I have perused the plaint and the annexures so also the records which have been produced by the Municipal Corporation and the SRA on affidavits. 7] From a perusal thereof, it is apparent that although the conveyance deed of 1961 shows the area as 4862 sq.yards as claimed by the plaintiffs, it is clear that the property was encroached and there were structures on the land. These structures were old and dilapidated and were notified as slum. There is notification duly published in the official gazette in that behalf. The property has been auctioned for non payment of municipal taxes and at the auction the same has been purchased by the promotor of the Cooperative housing society of slum dwellers. Thereafter, they approached the SRA as the area was brought within the purview of slum rehabilitation scheme for issuance NMS2158-09 5 of LOI. The LOI initially issued carried condition No.30 which obligates the LOI holder to have a demarcation of the land done by the authorities after proper measurements. The final exercise conducted shows that the LOI has been issued and the same states that the area of plot as per the Annexure II is 4444.40 sq.mtrs. The LOI dated 1st April 2009 is the last document on the file of SRA. Thereafter, the commencement certificate has been issued and it is stated that a building of ground plus 13 upper floors being composite building meant for rehabilitation of slum dwellers and outsiders has been put up at site. In such circumstances and when all these facts were known to the plaintiffs, atleast, after the notifications have been published in the official gazette, that this is not a fit case for grant of any interim relief. The alternate prayer of Mr.Saraf that the area is 4826 sq.yds. Equivalent to 4830 sq.mtrs and, therefore, when the sale certificate showing a lesser area, then, the balance thereof cannot be exploited, also deserves to be rejected. 8] Prima facie, the computation placed on record shows that even NMS2158-09 6 the sale certificate is issued for an area which is approximately calculated and computed. The actual measurement at site has been done thereafter and the LOI, therefore, correctly shows the figure of 4444.40 sq.mtrs., which is distinct than what is claimed by the plaintiffs. The area is mentioned in the LOI issued by the Competent Authority and today there is no reason to doubt the correctness of the same. The plaintiffs will have to demonstrate at the trial as to how the computation is faulty or the measurement has not been carried out in accordance with law. Until that is done and when the project is for rehabilitation of slum dwellers, I am of the opinion that no interim reliefs can be granted, particularly when the plaintiffs have failed to make out a prima facie case. Plaintiffs’ rights in the property after the sale certificate are not certain and doubtful. In such circumstances, the notice of motion is dismissed. No costs. (S.C.DHARMADHIKARI, J)