Therefore, We cannot find fault with learned trial Judge
because once the Honorable Supreme Court held that this Slum
rehabilitation scheme is duly sanctioned and legal in the present case
the same challenge cannot continue to subsist. It would be abuse of the
process of law if plaintiffs are allowed to continue the same prayers
which cannot be reagitated and granted when scheme is already
declared legal by the High Court and the Supreme Court. More so
when building is completed and occupied by the dwellers the prayers as
to the challenge letters of intent, intimation of approval and Building
commencement Certificate became infructuous. There can be no
injunction to restrain construction as the Building is completed and
possession also handed over to the dwellers. The suit was rightly
dismissed as infructuous.
CIVIL APPELLATE JURISDICTION
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
FIRST APPEAL NO.229 OF 2013
RAMESH FAKIRA LOHKARE, A
V/s.
THE MUMBAI MUNICIPAL CORPORATION
OF GREATER MUMBAI
CORAM : A. P
. BHANGALE, J.
DATE ON WHICH :
JUDGMENT IS PRONOUNCED : SEPTEMBER, 2013.
Citation;2014(3) ALL MR 173 Bom
Heard submissions at the Bar. Perused impugned oral
Judgment by the Trial court. The appeal is directed against the order
passed below Notice of Motion No. 2224 of 2012 taken out by
Defendant no.4 in Long cause Suit no. 2734 of 2009 with the prayer in
the N/M was for rejection of the plaint under Order 7 Rule 11 or
Return of the Plaint under Order 7 Rule 10 Civil Procedure Code. The
suit was disposed of as infructuous, on the ground that the building is
premises in suit structure situated at Dholkawala Chawl, a part of FP
No.569, TPS IV
, Mahim Division, Kakasahib Gadgil Cross lane, Dadar
(West), Mumbai28.
completed and number of the plaintiffs had taken possession of the suit
2
Learned Judge of the City Civil court held that reliefs
claimed in the plaint are infructuous because the plaintiffs have already
entered into agreements with defendant no.4 and agreed for the
implementation of the slum rehabilitation scheme and accepted the
compensation /rent for scheme. The scheme was declared as legal by
the Apex Court, therefore prayers in the plaint can not be entertained.
It is also alleged that the plaintiffs are proxy litigants put up by one
Pramila Thakur, who had filed many writ Petitions in this regard and
had also filed Special Leave Petition in the Apex Court to challenge
Building has been completed in accordance with the
sanctioning of slum rehabilitation scheme which were disposed of.
sanctioned scheme for slum rehabilitation and some of the plaintiffs
beneficiaries are already occupying the premises allotted to them
barring the few who have been put up as proxy litigants for Pramila
Thakur. The object of early completion of the building in execution of
the slum rehabilitation scheme is to provide shelter to the poor and
marginalized persons as early as possible and without undue
interference from ill motivated proxy litigants. Early implementation of
the Slum Rehabilitation Scheme( SRS ) is in the larger interest of poor
shelter less people. Trial Court is justified to remove the roadblock in
the form of suit seeking to restrain the completion of the Slum
rehabilitation Scheme which is otherwise duly sanctioned according to
law. High power committee have been constituted by the State
Government to oversee the implementation of the SRS. Hence the
remedy to institute the civil suit and to allow it to continue for long
years of normal course of the suit in City of Mumbai need not be
encouraged when the aggrieved person has remedy to approach the
high power committee constituted for the purpose, or if felt necessary
to invoke Writ jurisdiction, if so advisable. A suit to restrain the scheme
at the stage when it is already implemented, cannot continue.
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 is enacted to make better provisions for
improvement, clearance and redevelopment of slum areas in the State
of Maharashtra. The suit in hand, found without valid cause of action
cannot be allowed to continue to remain pending for long years which
would defeat the provisions of Act, in the facts and circumstances noted
by learned trial judge from the prima facie view of the plaint.
Therefore, We cannot find fault with learned trial Judge
because once the Honorable Supreme Court held that this Slum
rehabilitation scheme is duly sanctioned and legal in the present case
the same challenge cannot continue to subsist. It would be abuse of the
process of law if plaintiffs are allowed to continue the same prayers
which cannot be reagitated and granted when scheme is already
declared legal by the High Court and the Supreme Court. More so
when building is completed and occupied by the dwellers the prayers as
to the challenge letters of intent, intimation of approval and Building
commencement Certificate became infructuous. There can be no
injunction to restrain construction as the Building is completed and
possession also handed over to the dwellers. The suit was rightly
dismissed as infructuous. The controversy agitated is already dealt with
by discussion of law on the subject by the Apex Court in Pramila
Suman Singh Vs. State of Maharashtra & Others in Civil Appeal No.
7435 of 2008 decided on 19122008.
No ground is made out for interference by this court in
exercise of the Appellate jurisdiction. Hence appeal is dismissed.
(A. P
. BHANGALE, J.)
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