Dismissed notice of motion seeking interim protection of possession despite failed eviction suits and dismissed CRAs. Court maintained status quo temporarily but refused stay pending Supreme Court decision, noting tenancy claim was negated.
Status quo ordered in premises until 31.07.2014 subject to undertakings.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.100 OF 2014 IN WRIT PETITION NO.89 OF 2013
Babu V. Bhamaniya & Ors.
...Applicants
IN THE MATTER BETWEEN :
Babu V. Bhamaniya & Ors. ...Petitioners V/s. The State of Maharashtra & Ors. ...Respondents
Mr.Mayur Khandeparkar with Mr.A.G. Sakhare and Mr.Omar Khaiyam Shaikh for the Applicants / Petitioners.
Mr.Rajiv Mane, A.G.P. for the State - Respondent No.1.
Mr.Y.S. Jahagirdar, senior Counsel with Mr.Mandar Limaye, Mr.Mayuresh Lagu and Mr.Girish Paryani for Respondent Nos.3 and 4.
CORAM : S.J. VAZIFDAR &
A.K. MENON, JJ. DATE : 1ST JULY, 2014.
P.C. :-
same reliefs that they had sought earlier but were rejected. The petitioners however, contend that there are change in circumstances
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entitling them to seek the same reliefs, protecting their possession in respect of the structures occupied by them.
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the CRAs.
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reliefs.
Mr.Khandeparkar submitted that interim reliefs were refused only because the petitioners' possession of their respective structures was protected by the ad-interim and interim orders dated 07.03.2008 and 06.07.2009. The petitioners lost this protection on the dismissal of the CRAs. This, Mr.Khandeparkar submits, is the change in circumstances entitling the petitioners to file the present notice of motion for the same relief but on a different ground viz. the challenge to the impugned order dated 15.12.2012 which set aside the declaration of the property as a slum.
The order however, does not indicate this to be the only ground for the refusal of interim reliefs. The petitioners' petition for Special Leave to Appeal against this order was also dismissed. 8. Mr.Khandeparkar also relies upon the following facts in support of the present notice of motion. By an order dated 22.10.2013, the CRAs were directed to be heard along with this writ petition. The writ petition and the CRAs reached hearing before a learned single Judge. The learned single Judge on 18.12.2013 held that under the Rules, the writ petition is required to be heard by a Division Bench and not by a single Judge. By this time, the learned single Judge had heard the CRAs. The learned single Judge rejected the petitioners' application not to pronounce the judgment in the
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CRAs on the ground that the CRAs had been ordered to be clubbed with the writ petition. The learned single Judge noted that the hearing of the CRAs had concluded and the orders were reserved. The learned Judge pronounced the judgment in the CRAs on 14.02.2014. All the CRAs were dismissed. The petitioners' claim for tenancy was rejected. The judgment of the Small Causes Court as well as the Appeal Court of the Small Causes Court were confirmed.
“(vi) that in case they are unable to obtain suitable orders from the higher Court within 16 weeks from today, they will handover vacant and peaceful possession to the respondents within 16 weeks from today.
Paragraph 112 of the judgment is relevant and reads as
under :-
“112. Mr.Khandeparkar, Mr Mohankumar and Mr Omar Khayyam Shaikh submit that Writ Petition No.5929 of 2013 on Appellate Side and Writ Petition No.89 of 2013 on Original Side, have been instituted by the applicants challenging the Judgment and order of the Tribunal. They submit that notwithstanding the applicants giving undertakings in the present proceedings, the petitioners therein will apply for appropriate interim reliefs for protecting their possession. The submission of Mr Khandeparkar, Mr.
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Mohankumar & Mr. Omar Khayyam Shaikh is recorded. Order accordingly.”
The decrees of eviction in the RAE suits having attained finality cannot be questioned by us in this writ petition. We must proceed on the basis that the petitioners are not the tenants.
The petitioners however, are occupants of the structures on the property although according to the owners, they had put up the structures illegally and that they were only in occupation of the open land. In the event of this petition succeeding and the property being declared a slum, different considerations may arise even though the petitioners have failed to establish their rights as tenants. The questions then would be whether the petitioners or any one of them
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are eligible slum dwellers entitled to alternate accommodation in the event of the property being redeveloped under DCR 33(10). Mr.Jahagirdar, the learned senior counsel appearing on behalf of respondent Nos.3 and 4 however, submitted that even if the writ petition is dismissed, it only means that the respondents must obtain permission from the Competent Authority under section 22 of the Slum Act before evicting them.
reasons.
The petitioners cannot make any claim on the basis of their tenancy before this Court for their claim of tenancy has been negatived by this Court and the matter is pending in the Supreme Court. Moreover, that issue does not arise in this petition. Secondly, interim orders were expressly refused by an order dated 29.04.2013. The Supreme Court dismissed the petitioners' SLP against this order. 13. Mr.Khandeparkar contends however, that these orders were passed by this Court and by the Supreme Court only because at that time the petitioners' possession was protected by the order dated 06.07.2009 in the CRAs.
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in this regard. It is possible that the Court refused to grant interim reliefs also on other grounds.
The grant of stay by us would be contrary to the previous orders of this Court and of the Supreme Court in this writ petition and of the orders in the CRAs.
This order of status-quo will not prevent the respondents from making any applications or from pursuing any applications already made before this Court for withdrawal of the rent / compensation deposited by the petitioners. Such applications shall be decided on their own merits.
This order however, does not affect the order and judgment in the CRAs. Nor does it affects in any manner the undertakings given by the petitioners in the said CRAs.
(A.K. MENON, J.) (S.J. VAZIFDAR, J.)
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2 issues framed by the court
Whether interim relief should be granted to stay the operation of the Slum Tribunal's order despite dismissal of CRAs.
Whether the cleanness of possession order from CRAs entitles the petitioners to stay relief in the writ petition.
2 provisions across 1 enactments
Babu V. Bhamaniya & Ors.
The State of Maharashtra
S.J. VAZIFDAR
A.K. MENON
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
