- 1 - ao774.1026 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 774 OF 2011 with CIVIL APPLICATION NO.1026 OF 2011 Smt.Surekh Nana Kale & ors .. Appellants vs 1. The Mumbai Metropolitan Regional Development Authority .. Respondents & ors Mr.M.V.Holmagi for Appellants Mr.K.S.Patil for Respondent No.1-MMRDA Mr.P.G.Sawant 'B' Panel counsel for Respondent- State CORAM: J.H.BHATIA, J DATE: 10 th August 2011 P.C. 1. Heard learned counsel for the parties. 2. The Appeal is preferred by the original plaintiffs against rejection of the Notice of motion whereby they had sought directions for appointment of Court Commissioner for inspection of the tenements to establish their possession and occupation over the disputed tenements and - 2 - ao774.1026 also for appointment of Court Receiver for the said tenements and to appoint the plaintiffs as agents in their respective tenements pending the suit. 3. The suit is filed by 361 persons. According to them, they have been residing in Bhim Nagar in Ghatkopar area of Mumbai. Their premises and structures were taken over for road widening project as well as for construction of metro railways and for their resettlement, they were allotted tenements in Building Nos.1, 2 and 3 constructed by M/s Anjani Kumar Developers and handed over to MMRDA. They are in occupation of their respective tenements on the basis of allotment letters. According to them they are living in the said tenements along with family members and belongings. However, on 5th February, 2011 at about noon time the Defendants started using force and threatened the Plaintiffs of forcible eviction and dispossession. - 3 - ao774.1026 4. The Defendant No.1-MMRDA denied that any premises or structures of the plaintiffs were taken over for the purpose of any road widening or metro railway project. They also denied that any allotment letters were issued in favour of the Plaintiffs in respect of tenements in building nos.1,2 and 3. According to them, the Plaintiffs tried to forcibly take possession of the tenements in the said buildings and that act was tried to be stopped. According to the Respondents, Plaintiffs have no right, title or interest and they are simply trying to encroach upon the said tenements. 5. The allotment letters on the basis of which the plaintiffs claim their right to possess and the possession over the tenements in the said buildings are purported to have been signed by one Rajshekhar Shankarrappa Wachche,Project Manager, Rehabilitation and Resettlement. The said Rajshekhar Wachche who is working with - 4 - ao774.1026 MMRDA filed an affidavit in reply stating that he had never issued any of these allotment letters and these allotment letters do not bear his signatures. According to him, as he was holding additional charge of Project Manager, whenever he put his signature on a document as a Project Manager, he always used the words " I/C" before the rubber stamp "Project Manager, Rehabilitation and Resettlement", to indicate his position as in-charge Project Manager but, according to him on none of the allotment letters relied upon by the plaintiffs the word "I/C" are is there. According to him, the signatures appear to be forged. In his reply, he also stated that the procedure required for issuance of allotment letters was never followed and there was no material on the basis of which claim of the Plaintiffs to be allotted such tenements could be established. For the purpose of such allotment, it was necessary that the Project Annexure II should have been prepared by the Deputy Collector (Encroachment and Removal) - 5 - ao774.1026 showing the names of the persons who would be entitled for rehabilitation and resettlement. On the last date, an opportunity was given to the learned counsel for the plaintiffs to secure such Annexure II. Today the learned counsel for Plaintiffs/Appellants conceded that no such Annexure II is available. 6. While learned counsel for the Plaintiffs maintain that allotment letters in favour of the Plaintiffs are genuine documents and they were in fact allotted tenements and were put in possession, the learned counsel for the MMRDA- Respondent No.1 contended that the alleged allotment letters would go to show that they are fake and bogus documents. According to him, MMRDA has taken up three different development projects. One is "Mumbai Urban Infrastructure Project" for which short form is "MUIP". Another is "Mumbai Urban Transport Project" for which short form is "MUTP" and third is "Mithi River Development Plan" for which short form is - 6 - ao774.1026 "MRDP". Mumbai Urban Infrastructure Project (MUIP) covers development and construction of roads as well as metro railways. Such works are in fact going on in Ghatkopar area through Bhim Nagar. According to him, the abbrevation 'MRDP' would be applicable only in respect of Mithi River Development Project. Mithi River Development Project has no connection with Ghatkopar or Bhim Nagar because it is far away. The allotment letters indicate that the allotees i.e.the Plaintiffs were alloted tenements by the Deputy Collector (Encroachment) Ghatkopar "MRDP Phase II". The learned counsel for Respondent No. 1 contends that "MRDP Phase II" was being taken up in Bhim Nagar area and therefore, the question of allotments of the tenements to the Plaintiffs as project affected persons of that project would not arise. The learned counsel further tried to point out that the manner in which the signature of the Project Manager appears on each of the allotment letter indicates that these are not the genuine - 7 - ao774.1026 signatures but are scanned signatures. After perusal of the signatures on the documents this contention cannot be rejected outright. According to the learned counsel for the Plaintiffs, some officers of the MMRDA in collusion with certain agents or slumlords are trying to grab the property and allot the tenements to their favourites for extraneous consideration. 7. Taking into consideration the rival contentions of the parties, the alleged allotment letters referred to and relied upon by the Plaintiffs and the dispute about the genuineness of the same, in my opinion it will be necessary to make a thorough investigation in the matter. At the same time on the basis of the material on record at this stage, it is difficult to come to the conclusion that the structures or the premises of plaintiffs were taken over for any road widening project by the MMRDA and that they have been provided - 8 - ao774.1026 accommodation in building of M/s Anjani Kumar Developers. I do not want to express any opinion about the genuineness or otherwise of the claim of the Plaintiffs or about the truth in the contentions of the MMDRA. At this stage, taking into consideration all the facts and circumstances, no purpose would be served by appointing any Court Commissioner nor it will be in the interest of justice to appoint Court Receiver with a direction to appoint the Plaintiffs as agents for the respective tenements. In my opinion, purpose would be served if the tenements are required to be kept vacant till the investigation is completed. 8. Therefore, Appeal and Application stands disposed of with following directions : (i) The Commissioner of Police, Mumbai shall appoint some Senior Officer, not less than Assistant Commissioner of Police and who is not concerned with Ghatkopar area, to make an investigation into this matter and to submit report before the City Civil Court, Mumbai within three months from - 9 - ao774.1026 this date. (ii) The Respondent No.1- MMRDA shall keep all the 361 tenements vacant in Building nos. 1,2 and 3 for three months. (iii) If the investigation report reveals the claims of the Plaintiffs to be genuine, the Plaintiffs shall be at liberty to take out a fresh Notice of motion before the trial court for appointment of Court Receiver for the said tenements, with direction to appoint the Plaintiffs as agents of the Court Receiver, pending the suit. (iv) If the claims of the Plaintiffs are not found to be genuine,after submission of the investigation report, MMRDA shall be at liberty to allot the said premises to persons, who may been entitled as per their record. Appeal and Application stand disposed of accordingly. J.H.BHATIA, J