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IN THE HIGH COURT OF BOMBAY
Daga V.C., J.
Rajiv Gandhi Nagar Rahivasi Welfare Society others... Appellants.
Versus
Maharashtra Housing and Area
Development Authority another... Respondents.
First Appeal No. 1699 of 2002, decided on 22-9-2003.
Advocates appeared :
H.S.S. Murthy, for appellants.
G.W. Mattos with Mrs. G.P. Mulekar, for MHADA.
DEMOLITION - Property Dispute - Maharashtra Land Revenue Code, Societies Registration Act, 1860, Maharashtra Housing and Area Development Authority Act - Section 50 of the Maharashtra Land Revenue Code, protection to hutment dewellers, ownership of the property, encroachment, possession, legal right, rank trespasser, res judicata, clean hands doctrine
Fact of the Case:
The plaintiffs, an association and its members, occupied huts on a plot of land claimed to be protected under the policy of the State Government. The State Government demolished the structures, leading to a suit for a declaration of illegality and a mandatory injunction.
Finding of the Court:
The trial court found that the plaintiffs failed to prove their possession prior to 1995 and the illegality of the demolition. The court dismissed the suit, and the appellate court upheld the decision, finding the plaintiffs' case to be vague and lacking material facts and particulars.
Issues: The issues included the possession and ownership of the property, the legality of the demolition, and the entitlement to protection under the State Government's policy.
Ratio Decidendi: The plaintiffs failed to establish their legal right, possession, or entitlement to protection under the State Government's policy. The court applied the clean hands doctrine and res judicata, finding the plaintiffs' conduct to be misleading and lacking in material facts.
Final Decision: The appeal was dismissed, and the interim relief, if any, was vacated with no order as to costs.
FACTS :
The facts giving rise to the suit as disclosed in the plaint are as under:
2. Plaintiff No. 1 is an Association duly registered under the Societies Registration Act, 1860. Plaintiff No. 2 is the President of the said Association; while plaintiff No. 3 is its Secretary. Plaintiffs contend that the members of the Association running into more than 400 were occupying huts on plot of land bearing Survey No. 263 (Part), located at Babrekar Nagar, Link Road, Kandivali (W), Mumbai, ("the suit property" for short).
3. The plaintiffs averred in the plaint that each of their members was having identity card issued by Election Commission. The hut in question were erected on the said plot of land by him. The said structures were leased out to various persons, after the death of Shri Bhika Bala Pawar, by one of his legal representatives by name; Shri Jagdish Yashwant Pawar, much prior to 1985, who are now members of the 1st plaintiff-society.
4. In the plaint, it is further pleaded that the policy of the State of Maharashtra, extends protection to the hutment dewellers; whose huts were erected prior to 1st January, 1995. The plaintiffs claiming to be in possession of their huts since prior to 1985 claimed to be protected under the policy of the State Government.
5. It is further pleaded that in pursuance of the new item published in the Daily "Samana" dated 4-7-1997; notices were served on the plaintiffs sometime in the month of May, 1997, under section 50 of the Maharashtra Land Revenue Code, calling upon them to vacate the premises as the demolition work was to be undertaken. The plaintiffs claim to have replied to the said notices and took exception to the action proposed in the said notices.
6. It is further pleaded in the plaint that the Tahasildar and Deputy Collector (Encroachment), Officer of the State Government, hastily demolished the structures standing on the suit property. The said action of the State Government, the defendant No. 2 is bad and illegal, being in violation of their declared policy in the matter of protection extended to the hutment dwellers.
7. It is further pleaded in the plaint, that defendant No. 1, MHADA was required to undertake the work of rehabilitation of the slum dwellers as per the provisions of the Maharashtra Housing and Area Development Authority Act ('The MHADA Act') in a lawful manner but they resorted to take possession of the suit property by illegal means. That is how the alleged action of demolition resulting consequent dispossession of the plaintiffs the respondents/defendants is made a subject-matter of challenge in a suit with a prayer to restore all the structures alleged to have been illegally demolished by the defendants.
8. On being summoned, the respondents/defendants, appeared and denied all the contentions made in the plaint by filing their written statements.
9. The defendant No. 1 challenged locus standi of the plaintiffs to file suit and also jurisdiction of the Civil Court to entertain and try the suit in question in view of provisions of section 177 of the MHADA Act. The defendant No. 1 in defence pleaded that the suit property was originally owned by the State Government. The same was handed over to them on 15-2-1993 under Collector's order dated 3-10-1991 for development with encroachment existing thereon. Consequently, the encroachments were required to be removed in the month of June, 1996. According to the
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