Case: LULLU VAS (SINCE DECEASED) THROUGH LRS AUDREY LUDWIG VAS Vs. THE STATE OF MAHARASHTRA

other remedy available to the party except to grant the relief sought.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.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 dwellers. (See Balasaheb Arjun Torbole v. Administrator and Divisional Commissioner., (2015) 6 SCC 534 ). The legislative 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 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 lease¬hold right which is the subject matter of the trial. In order to substantiate their claim, the appellants have produced multiple documents on records, the 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]22. Even though the parties have argued at length and produced multiple documents regarding the lease¬holding 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 subject matter of the trial. The aforesaid contentions raised by the parties are to be resolved during the trial.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 non-interference 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.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.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 dwellers. (See Balasaheb Arjun Torbole v. Administrator and Divisional Commissioner., (2015) 6 SCC 534 ). The legislative 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 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 lease¬hold right which is the subject matter of the trial.In order to substantiate their claim, the appellants have produced multiple documents on records, the genuineness of which is seriously doubted by the respondent authorities.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.