1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 67 OF 2010 ALONG WITH CIVIL APPLICATION (ST) NO. 26653 OF 2009 The Maharashtra Housing and Area Development Authority (MHADA) ... Appellant v/s 1. Smt.Rukmini Ramchandra Ambre & ors. ... Respondents Mr.G.W.Mattos, A.G.P. for the appellant. Mr.Navin Parekh i/by M/s.V.R.Tripathi & Associates for respondent Nos.1 to 4. Mr.S.G.Surana for the Society. CORAM: SMT.NISHITA MHATRE, J. DATED: 9TH MARCH, 2010 P.C.: 1. Appeal admitted and heard finally forthwith. 2. This appeal has been filed by The Maharashtra Housing and Area Development Authority (in short, “MHADA”), challenging the order passed by the Trial Court on 12th October, 2009. By this order, the notice of motion filed by 2 the respondents/plaintiffs has been allowed and the appellant MHADA has been restrained from enforcing its notice issued under Section 95A of the Maharashtra Housing and Area Development Act, 1976 (in short, “MHADA Act”). 3. The dispute has arisen in this case after the MHADA permitted redevelopment of a plot of land on which the plaintiffs’ structures are situated. Admittedly, the structures are non-cessed . The No Objection Certificate (in short, “N.O.C.”) has been issued permitting redevelopment of the land under the Regulation 33(7) of the Development Control Regulations for Greater Mumbai, 1991 (in short “D.C. Regulations”). It appears that, thereafter a clarification was issued on 1.6.2007 by the State Government. By this clarification, the State Government has explained that cessed structures can be developed under D.C.Regulation 33(7), whereas the non-cessed structures would be developed under D.C.Regulation 32. 4. The suit has been filed by the plaintiffs contending that the notice issued by the MHADA under Section 95A of the MHADA Act on 4.9.2009 is illegal and bad in law. An injunction has been sought by the plaintiffs against the MHADA restraining it from acting on its notice. 3 5. The City Civil Court has granted the temporary injunction as prayed for in the notice of motion. It has held that, since the N.O.C. was issued under Regulation 33(7), it would not be applicable to the non-cessed structures and, therefore, eviction under Section 95A cannot be resorted to by the MHADA. 6. The learned A.G.P. appearing for the appellant has pointed out that there are 579 cessed structures on the property; 85 are non-cessed structures out of which 83 have already been evicted from their plot. There are only 2 structures occupied by the plaintiffs which remain on the plot. These are non-cessed structures. The learned advocate has submitted that Section 95A does not draw a distinction between cessed structures and non-cessed structures and therefore MHADA can act on the notice issued. He has also submitted that the plaintiffs who occupy two non-cessed structures cannot be permitted to create obstacles for the redevelopment of the entire property occupied by over 600 structures. 7. These submissions of the learned advocate appearing for the MHADA are supported by the the learned counsel who appeared on behalf of the developer on 24.2.2010 when 4 the matter was heard for a while and later adjourned. The developer has filed Appeal from Order No.156 of 2010 challenging the same order. The Society of the occupants of the structures has also filed the appeal bearing Appeal from Order (St) No.26648 of 2009. The learned advocate for the Society has also supported the submissions of the learned A.G.P. 8. Mr.Parekh appearing for the respondents/plaintiffs submits that when a N.O.C. has been granted for redevelopment of a plot of land under Regulation 33(7), the MHADA cannot take recourse to Section 95A of the Act for evicting the occupants from the land. He submits that, even assuming that MHADA has been permitted by the clarification issued by the State Government to redevelop cessed as well as non-cessed structures, since the N.O.C. for redevelopment has been issued under D.C.Regulation 33(7), the MHADA can act only in accordance with that regulation. He further submits that a developer cannot be permitted to evict persons from the non-cessed structures when he has been granted permission to redevelop only the cessed structures. 9. The N.O.C. granted by the MHADA under Regulation 5 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. 10. Admittedly, the MHADA has issued N.O.C. for reconstruction under Regulation 33(7). There is no dispute that the respondent/plaintiff has refused to vacate the premises which she occupies and, therefore, in my opinion, the MHADA was well within its rights in issuing the notice under Section 95A and exercising powers under that section. 11. Therefore, in my view, the learned Judge of the City Civil Court was in error in granting an injunction. 12. In the case of Suresh R. Dubey & ors. v/s The State of Maharashtra & ors., in Writ Petition No.1362 of 2008, the Division Bench of this Court was considering the provisions of Section 95A. While considering the rights of the parties in a redevelopment scheme, the Division Bench has observed thus - 6 “The MHADA and the developer are not terminating the tenancy of the petitioners. Their tenancy rights have been accepted by the MHADA and the developer. Not only that the owner also accepts their tenancy rights. Only the owner and other tenants have submitted a scheme to the MHADA for redevelopment of the property in issue. Each tenant including each petitioner is going to get a permanent tenement after the redevelopment of the property in view of his tenancy rights. Therefore, the contention of the learned counsel for the petitioner that unless and until the tenant is evicted by following the procedure under the Rent Act the schemes under the MHADA Act cannot be executed is based on misconception of law.” 13. The learned counsel for the respondent has submitted that rejecting his application for interim relief would amount to dismissing his suit at the interim stage. In my opinion, this submission cannot be accepted. It is now well settled that the relief granted by a Court at the interim stage cannot be such that it would amount to granting the final relief. However, it does not preclude the Court from rejecting the application for interim relief, even assuming that the suit would tend to become infructuous. Unless the plaintiff shows some semblance of a right at the interim stage, a temporary injunction can always be refused. 14. There is no dispute that the MHADA has certified that the area which is occupied by respondents/plaintiffs is 175.20 sq.mtrs. i.e. 1885.15 sq. ft. carpet area. The plaintiffs would be entitled to that area. Mr.Mattos, the learned A.G.P. 7 further allayed the apprehension of the respondents/ plaintiffs that the printing press which is being run today in the two structures would not be able to continue in a residential area. He points out the provision of D.C.Regulation 52(4) which permits the running of printing press in a predominantly residential area. Besides, under Regulation 52(4)(xvi), a printing press is permitted with an “aggregate motive power each not exceeding 3.75 KW and not employing more than 9 persons and individual electric motors of not more than 1.5 KW”. 15. In my view, therefore, the apprehension that the respondents/plaintiffs are not being alloted premises in the redeveloped structures is without any foundation. 16. The appeal from order is therefore allowed. The injunction granted by the City Civil Court is set aside. 17. On the application made by Mr.Parekh for the respondents/plaintiffs, this order is stayed for a period of eight weeks from today. ..... 8 9