Judgment :-

S.B. Sinha, J.

1.1. Leave granted.

2.2. Appellants herein are slum dwellers. They and/ or their predecessors encroached upon a property bearing C.T.S. No. 61, Survey No. 59 in village Mulgaon. Indisputably, an agreement was entered into by and between the parties hereto with regard to their rehabilitation on C.T.S. No. 82, the relevant conditions whereof read as under:

"3. Eligibility

There are a number of huts which are existing on the slum property, whose names of occupant and structures are appearing in 1995 voters list and are occupying the same till date. It will be the responsibility and obligation of the occupant to obtain Eligibility Certificate by the Competent Authority. In case the Occupant fails to get such certificate this agreement will ipso facto come to an end and occupant will not have any rights against the party of the other part. The eligibility certificate to be issued by concerned Authority shall be final and binding.

4. Consent

Slum dwellers hereby agree and give consent to participate in SPA as per DCR (10), Appendix IV. If, however, the Developer is unable to implement SRA scheme due to any reasons, the occupant will still get the allotment of 225 sq. ft. carpet area on ownership basis form the Developer in this case the proposal will be sanctioned by MCGM. In other words, the interest of the occupant is safeguarded from all angles. The occupant is hereby aware and agrees to shift into permanent ultimate accommodation admeasuring 225 sq. ft. carpet area which will be consisted for them on CTS No. 82 village Mulgaon."

1.3. Inter alia on the premise that the appellants failed to obtain eligibility certificate, the respondents started construction of commercial building on Survey No. 82.

2.4. The appellants filed a suit in the City Civil Court at Bombay which was marked as

Short Cause Suit No. 7 of 2009 praying inter alia for a declaration:

"(a) That this Honble Court may be pleased to declare that the agreements under the head as "Agreement between Slum dwellers and Developer" as identical to Exhibit B to the plaint entered into on different dates between Defendant No. 1 and 2 and the plaintiff are effective, subsisting and binding on the parties and accordingly the plaintiffs are entitled to be provided a flat of carpet area of 225 sq. ft. in the plot CTS No. 62 situated at Moolgaon, Andheri

(E) Mumbai;

b) that pending the hearing and final disposal of this suit any construction activities in view of the IOD dated 18-10-2007 CC dated 18-10-2007 and sanctioned plan dated 19th July, 2007 on CTS No. 82 situated at Moolgaon, Andheri (E) Mumbai be stayed in the interest of justice."

5. In the said suit, the appellants took out a notice of motion for grant of injunction for the following terms:

"(a) the pending the hearing and final disposal of this suit, any construction activities in view of the IOD dated 19.07.07 CC dated 08.02.08 and sanctioned plan dated 19th July, 2007 on CTS No. 82 situated at Moolgaon, Andheri (E), Mumbai be stayed in the interest of justice."

2.6. The learned Trial Judge by an order dated 16.02.2009 opined that as the appellants failed to obtain an essentiality certificate and C.T.S. No. 61 was not declared as slum area, the question of taking recourse to the slum rehabilitation scheme did not arise. It was, however, held:

"...I find much substance in the submissions made by the ld. Advocate for defendant that no residential premises can be constructed on C.T.S. No. 82 as it comes under the commercial zone and there is permission in respect of the construction of commercial premises only on C.T.S. No. 82 by the Municipal Corporation and as performance of the agreement between the defendants and slum dwellers cannot be specifically enforced, the reliefs as prayed in the notice of motion cannot be granted..."

1.7. An appeal preferred thereagainst before the High Court has been dismissed by reason of the impugned judgment.

2.8. Mr. V. Shekhar, learned senior counsel appearing