Full Text
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO. 9596 OF 2021
Municipal Corporation of Greater Mumbai through Assistant Municipal
Commissioner, H East Ward. .. Appellant
Society Association Ltd & Ors. .. Respondents ...................
Mr. N.V. Walawalkar, Senior Advocate a/w Ms. Madhuri More i/by
Mrs. A.K. Savla for the Appellant
Mr. Sachin Kadam for Respondent No. 1 ...................
JUDGMENT
2. This Appeal from Order is filed to challenge the order dated 09.03.2021 passed by City Civil Court, Dindoshi, Mumbai in Notice of Motion No. 5 of 2021 in S.C. Suit No. 7 of 2021, whereby the trial Court has made the said Notice of Motion absolute in terms of prayer clauses (a), (b) and (c). 1 of 17 The prayer clauses (a), (b) and (c) of the Notice of Motion reads thus:- "(a) That pending hearing and final disposal of the above suit this Hon'ble Court be pleased to direct the Defendant No. 1 to stay its hands and remove the partly carried out construction activity at the suit plot of land bearing C.T.S. No. 418 being red portion shown in lay out plan; (b) That pending hearing and final disposal of the above suit, this Hon'ble Court be pleased to direct the Defendant No. 3 to implement the Hon'ble Court's order and restrain any person from carrying out any construction on the suit plot of land bearing C.T.S. No. 418 as shown in red colour in the lay out plan bearing Exhibit "E" hereto and also to maintain law and order at site;
(c) That pending hearing and final disposal of the above suit, this
Hon'ble Court be pleased to grant temporary order and injunction restraining the Defendant No. 1, its officers, servants, agents and person or persons claiming through or under them from carrying out any construction activities of public toilet in the suit premises shown in red colour in the lay out plan on plot bearing C.T.S. No. 418 being Exhibit "E" hereto."
3. By consent of the parties, the Appeal from Order is taken up for hearing. For the sake of convenience, we shall refer to the parties as they were referred to before the trial Court i.e Appellant will be referred to as Defendant NO. 1, Respondent No. 1 herein will be referred to as Plaintiff and Respondent Nos. 2 & 3 will be referred to as Defendant No. 2 & Defendant No. 3 respectively.
4. Briefly stated, Plaintiff is a Federation of several Co-op. housing societies in Nirmal Nagar Area, Bandra (E), Mumbai. Suit bearing L.C. Suit No. 7 of 2021 has been filed by the Plaintiff for the following reliefs:- 2 of 17 "(a) That this Hon'ble Court be pleased to declare that the work being carried out at the said site more particularly described in lay out plan in red ink on the plot of land bearing C.T.S. No. 418 of construction of toilet by the Defendant No. 1 is illegal, bad in law, null and void and is without proper permission of Competent Authority or of the Plaintiff; (b) That this Hon'ble Court be pleased to direct the Defendant No. 1 to stay its hands and remove the partly carried out construction activity at the suit plot of land bearing C.T.S. No. 418 being red portion shown in the lay out plan;
(c) That this Hon'ble Court be pleased to direct the Defendant No. 3 to implement the Hon'ble Court's order and restrain any person from carrying out any construction on the suit plot of land bearing C.T.S. No. 418 as shown in red colour in the lay out plan being Exhibit "E" hereto and also to maintain law and order at site;
(d) That this Hon'ble Court be pleased to grant permanent order and injunction restraining the Defendant No. 1, its officers, servants, agents and person or persons claiming through or under them from carrying out any construction activities of public toilet in the suit premises shown in red colour in the lay out plan on plot bearing C.T.S. No. 418 being Exhibit "E" hereto."
5. Mr. Walawalkar, learned Senior Advocate appearing for the Appellant / Defendant No. 1 - Corporation has assailed the impugned order dated 09.03.2021 and contended that the Corporation was redeveloping and reconstructing an already existing dilapidated toilet block standing on an open portion / space in C.T.S. No. 418. This is the factual position and the Plaintiff has suppressed the same while approaching the trial court. He submitted that the original toilet block having 40 toilet seats was in a very bad condition and practically unusable pursuant to which several complaints were received from the local Municipal Councillor of Beat 95 and a local organization 3 of 17 called Prabhati Nirmal Sudhar Samitee. Thereafter the officers of the Corporation jointly visited and inspected the original toilet block / structure along with the local Councillor and local residents from Nirmalnagar and Deepakwadi; the original toilet block was constructed in the year 2010-11 from the MLA fund of then MLA Mr. Prakash (Bala) Sawant; the WC pans were in broken condition, bottoms of the doors were corrugated and damaged completely; vent pipes were damaged at many places and the overall condition was filthy and bad. The photographs of the original toilet block which are part of the paper book were also referred to and attention of the Court was drawn thereto. The same has not been denied by the learned counsel for the Plaintiff which is material.
5.1. Mr. Walawalkar submitted that considering the population of the locality in Deepakwadi and Nirmalnagar, a survey was carried out by appointing CBO called Pratha Samajik Sanstha which reported that 57 toilet seats were the requirement considering that there were 788 ladies and 873 gents residing in the said area. Accordingly estimation, planning, designing and construction of the RCC community toilet block was planned and executed to have 67 toilet seats. The Competent Authority for administrative sanction 4 of 17 approved the proposal submitted by the Assistant Engineer (Maintenance department) H/ East ward on 19.03.2020; work order was issued to Defendant No. 3 on 14.07.2020 and immediately thereafter during the last monsoon, the old toilet block was demolished and reconstruction work commenced. Though Defendant No.2 MHADA had inquired with Defendant No. 1 Corporation about the permission, it was put to the notice of MHADA that the Secretary of Urban Development Department had directed that no NOC would be required from the land holding authorities. Nevertheless Mr. Walawalkar submitted that the Corporation shall approach MHADA if so required and complete the formalities as both the Corporation and MHADA being instrumentalities of the State are planning authorities and carry out similar functions.
5.2. He submitted that the toilet block reconstruction is being done under the Central Government's Swachha Bharat Abhiyaan Scheme. He submitted that construction of latrines did not require permission of the local bodies in as much as the land holding authorities did not have the authority to disallow construction of latrines (IHHL, Community Latrine and Public Latrine) under the Swachha Bharat Mission (Urban) for censused structures noted in 5 of 17 2011 census. In any event, it was submitted that reconstruction of the toilet block was in place of the old toilet block and not a new construction; it was in the larger public interest and would serve the population of the slum areas of Deepakwadi and Nirmalnagar who were using the earlier toilet block and who would now be benefited by the new toilet block structure; it was in the interest of residents of the locality and in absence of a clear right, title and interest, the Plaintiff Federation could not oppose the same.
5.3. While referring to the impugned order, Mr. Walawalkar submitted that the finding given in paragraph No. 14 is prima facie on the face of record incorrect. He submitted that it has been held in the impugned order that Defendant No. 1 cannot enter on private land by any private person even though the work of construction of public toilet is in the larger public interest. He submitted that this finding and terming Defendant No. 1 as an encroacher on the private land owned by Defendant No. 2 MHADA for unauthorized construction of public toilet is incorrect in fact and law. He submitted that the impugned order is passed on the basis that the Corporation is constructing a fresh structure / toilet block without looking into the record that there existed an earlier toilet block of 40 seats. This aspect 6 of 17 is missing in the entire impugned order. The impugned order proceeds on the basis that the Plaintiff is the owner of C.T.S. No. 418 and this is incorrect and erroneous in as much as the Plaintiff does not have any conveyance in its favour. Merely on the basis of a lay out, it cannot be assumed that the Plaintiff becomes the owner of C.T.S. No. 418 and more specifically of the open space where other constructions have been in place since long. He submitted that the argument of the Plaintiff that there are two other toilet blocks within 30 meters of the said site cannot be countenanced as proper estimation, planning and execution of the present toilet block has been done based upon the population of the area on the basis of the 2011 census. He therefore persuaded the Court to set aside and quash the impugned order and allow the Appeal from Order filed by the Corporation in the larger public interest.
6. PER CONTRA, It is the case of the Plaintiff that Defendant No. 1 Corporation suddenly started carrying out work of construction of a public toilet block on an open portion of land in C.T.S No. 418. The case pitched by the learned counsel appearing for the Plaintiff is that Defendant No.1 Corporation suddenly out of blue started construction work of a public toilet structure on a portion of open plot of 7 of 17 land in C.T.S. No. 418. Plaintiff has asserted that the open space where the toilet is being constructed is being used by the members of the Plaintiff's Federation of Socieities for the past several years; Plaintiff is in settled possession of the said open space and is the owner of the said open space of land; Defendant No.1 Corporation has no right or permission from Defendant No. 2 MHADA to construct or start constructing on the said open space of land. This case is stated in paragraph Nos. 14 and 15 of the plaint.
6.1. At the outset, Mr. Kadam on a query put by the Court has very candidly admitted that the case stated in paragraph No. 15 is incorrect in as much as there was already an old dilapidated toilet structure standing on the said open portion / space in C.T.S. No. 418 for several years and since it was in a precarious condition the Corporation demolished the same and started construction of a new toilet block with 67 seats for the benefit of the slum dwellers / users. On the issue of title, Mr. Kadam is not in a position to show any document or evidence of title to the said open portion / space where the public toilet block structure is being reconstructed and redeveloped by the Corporation, save and except agitating that the entire C.T.S. No. 418 comprises of several buildings who are members of 8 of 17 the Plaintiff Federation and the said buildings have approached MHADA for the purpose of redevelopment and MHADA has granted permission to the Plaintiff for redevelopment of the said lay out subject to conditions. Thus, it is the case of the Plaintiff that by virtue of the lay out being sanctioned by MHADA and the offer letter being given to the Plaintiff, Plaintiff has become the owner of land i.e C.T.S. No. 418 which includes the open portion / space where Defendant No. 1 Corporation is constructing the toilet block. Therefore, it is imperative on the part of Defendant No. 1 Corporation to obtain permission and sanction from Defendant No. 2 MHADA as well as seek permission of the Plaintiff Federation. Apart from the above submission, admittedly there is no documentary evidence of any registered conveyance of C.T.S. No. 418 in favour of the Plaintiff Federation.
6.2. Mr. Kadam submitted that most of the societies in the lay out are owners of their respective structures as the same has been conveyed to them by Defendant No. 2 MHADA. In view thereof, several societies have become owners of the open land appurtenant to their respective structures and the land beneath their respective structures. Hence, the Plaintiff has become owner of C.T.S. No. 418 in 9 of 17 its entirety. Mr. Kadam finally submitted that if the toilet block is constructed on the said open portion / space, it will give a reduced return of FSI to the various flat occupiers and members of the societies after redevelopment. Therefore, he supported the impugned order and stated that it was correctly passed and the same needs to be upheld by dismissing the Appeal from Order and the Interim Application filed by the Corporation.
7. Submissions of the parties have been on pleaded lines. Perused the material on record and pleadings.
8. In its pleadings, Plaintiff has not produced any documentary evidence of its title to C.T.S. No. 418. Therefore, to accept the case of the Plaintiff that the Federation is the owner of C.T.S. No. 418 is difficult. Although the Plaintiff has produced an offer letter and sanctioned lay out of C.T.S. No. 418, the same does not certify that the Plaintiff is the owner of C.T.S. No. 418. Certainly the members of the societies of the Plaintiff Federation are the owners of their respective buildings and the land beneath the buildings and the area appurtenant thereto but to claim ownership of the open space / portion 10 of 17 where the original toilet block existed or any other structure standing on C.T.S. No. 418 without any documentary evidence of tile of transfer and conveyance from Defendant No. 2 MHADA, cannot be accepted by the Court. Thus it is proved that the Plaintiff lacks title in respect of C.T.S. NO. 418.
8.1. That apart the critical fact which determines the case of the parties is the fact that construction of the present public toilet block is not a fresh construction. Admittedly, the old toilet block of 40 seats was already present at the site on the open portion / space in C.T.S. No. 418. It was dilapidated, unusable and therefore under the Swachha Bharat Abhiyaan Scheme, after following the due process of law, reconstruction and redevelopment of the old toilet block is contemplated, executed and implemented. Thus, the case of the Plaintiff therefore cannot be countenanced that the Corporation is an encroacher of C.T.S. No. 418 and started construction of toilet block suddenly without permission from MHADA or without permission from the Plaintiff.
8.2. The construction of the toilet block is a socially beneficial project for the residents of Deepakwadi and 11 of 17 Nirmalnagar under the Swachha Bharat Abhiyaan Scheme. It is surprising that despite the old toilet block being in place till the last monsoon, the averments of the Plaintiff that the open space has been in existence since development and lay out and also used by all the societies forming part and parcel of the said lay out is on the face of record false. It is an admitted position that C.T.S. No. 418 is surrounded by hutments and the old toilet block provided succour to these hutments. Since it was in an unusable state of affairs, the same is now being remodelled, reconstructed and redeveloped for the benefit of the existing slum dwellers who were originally using the old toilet block. The affidavit dated 19.01.201 filed by the Junior Engineer (Maintenance) of the Corporation on behalf of Defendant No.1 Corporation exhibits the aforesaid facts. For the purpose of reference, paragraph No. 7 of the said affidavit which is relevant is extracted as under:- "7. Without prejudice to the aforesaid contentions which are without prejudice to another, the true facts pertaining to the present case are as follows: (a) I say and submit that the plaintiff herein has filed the present suit praying therein that this Hon'ble Court be pleased to grant temporary order and injunction restraining the Defendant No.1, its officers, servants, agents and person or persons claiming through them from carrying out any construction activities of public toilet in the suit premises shown in red colour in the lay out plan on plot bearing C.T.S.No.418 being Exhibit "E" and further prayed that the Defendant No.1. To stay its hands and remove the partly carried out construction activity at the suit plot of land bearing C.T.S.NO. 418 red portion shown in the lay out plan. 12 of 17 (b) I say and submit that oral complaints were received from local Municipal Councilor of Beat 95, as he had received complaint letter from local organization naming Prabhati Nirmal Sudhar Samitee regarding bad condition of toilet block at Nirmalnagar. Hereto annexed and marked as Exhibit A is the copy of complaint letter dt. 30.07.2019 from local organization naming Prabhati Nirmal Sudhar Samitee regarding bad condition of toilet block at Nirmalnagar to the local Municipal Councilor of
(c) I say and submit that the accordingly, the Defendant No.1 had jointly inspected the site along with Local Councilor and local residents from Nirmalnagar and Deepakwadi, then it was observed that the existing toilet block which had name board of MHADA Authority, stating that the said toilet is constructed through MLA fund of Hon'ble MLA Shri. Prakash (Bala) Sawant in the year 2010- 11, WC pans are in broken condition, GI Doors bottoms corrugated and damaged, vent pipes got damaged at many places of said toilet block, overall it was in bad condition. Hereto annexed and marked as Exhibit B is the copy of photographs.
(d) I say and submit that accordingly, these Defendants had carried out survey at Deepakwadi by appointed CBO naming Pratha Samajik Sanstha which had reported that the total 57 numbers toilet seats were required as per the present population in that locality i.e. total 788 nos. of ladies and 873 nos of gents. Therefore, these Defendants had prepared estimate for planning, designing and construction of RCC Community toilet block under LOT 11R in which it is proposed to reconstruct the above mentioned toilet in G+2 RCC structure having total nos. of 67 seats against the existing 40 seats as per surveyed by appointed CBO. Hereto annexed and marked as Exhibit C is the copy of survey conducted by CBO. (e) I say and submit that thereafter, the Assistant Engineer (Maintenance Department) H / East ward had submitted the said proposal tot he Competent Authority for administrative sanction and same was obtained u/no. DMC / Z-III / 8214 dated 19/03/2020. Hereto annexed and marked as Exhibit D is the copy of sanction u/no. DMC /Z-III/ 8214 dated 19/03/2020. (f) I say and submit that after obtaining administrative sanction from Competent Authority, the Defendant No.3 had issued work order having P.O. no. 4100061615 dated 14.07.2020 to the appointed contractor M/s API Civilcon Pvt Ltd for the construction of RCC Community toilet block under LOT 11R at Nirmal Nagar in Beat 95, H/East ward. Hereto annexed and marked as Exhibit E is the copy of work order having P.O.no. 4100061615 dated 14.07.2020 to the appointed contractor M/s API Civilcon Pvt Ltd for the construction of RCC Community toilet block under LOT 11R at Nirmal Nagar in Beat 95, H/East ward. (g) I say and submit that after the demolition of old toilets the 13 of 17 reconstruction work was started after monsoon that was from 01.11.2020. Hereto annexed and marked as Exhibit F is the copy of photographs of reconstruction of toilet work. (h) I say and submit that the Defendant No.1 received letter from Defendant No.2 i.e. MHADA dt. 09.12.2020 stating that the ongoing toilet construction work is on vacant MHADA land and informed to stop the work. Hereto annexed and marked as Exhibit G is the copy of letter from Defendant No.2 i.e. MHADA to Defendant No.1 MCGM.
(i) I say and submit that however, the Defendant No.1 i.e.
MCGM replied to Defendant No.2 i.e. MHADA on 21.12.2020 stating that the construction work of toilet block is going on by demolishing existing old toilet block and also as there are directions from Secretary of Urban Development Department stating that 'No NOC should be required from land holding authorities'. Hereto annexed and marked as Exhibit H is the copy of the Defendant No.1 i.e. MCGM replied to Defendant No.2 i.e. MHADA on 21.12.2020. (j) I say and submit that the work of LOT-11R is under Central Governments SWACHHA BHARAT ABHIYANN SCHEME. However, as per the clarification received from Chief Secretary of Urban Development Department regarding NOC / Permissions required by the Urban Local Bodies, it clearly mentioned that 'land holding authorities do not have the authority to disallow construction of latrines on their land and therefore no NOC should be required from land holding authorities such as Railways, Ports, CRZ, Environment, Customs, NHAI, Archaeology, Forest etc. for construction of latrines (IHHL, Community Latrine & Public Latrine) under Swachha Bharat Mission (Urban) for census structure noted in 2011 census. Hereto annex and marked as Exhibit I is the copy of the letter from Chief Secretary of Urban Development Department to the Additional Municipal Commissioner dt. 21.09.2015 along with Circular dated 04.06.2015. (k) I say that the above mentioned toilet at Nirmalnagar was taken for construction of G+2 (67 seated) toilet block is not on open land, it has being constructed by demolishing existing old 40 seated toilet block under same scheme. I say and submit that the Defendant No.3 reconstructing toilets block as per letter received tot eh Defendant No.1 from Chief Secretary of Urban Land Development Department under the scheme of the Central Governments SWACHHA BHARAT ABHIYANN. I say and submit that the said construction of toilets is in the larger public interest therefore the Plaintiff as well as Defendant No.2 cannot obstruct the construction of toilet blocks as it is in the interest of residents of that locality."
8.3. From the above, it is discernible that the Corporation has not encroached upon C.T.S. NO. 418 as a 14 of 17 rank encroacher to construct the toilet block and there is a history to the construction of the new toilet block which cannot be lost sight of. Under the Brihanmumbai Mahanagar Palika Swachha Bharat Abhiyaan Scheme, it is contemplated that toilet block should be constructed in various slums of Mumbai through the concerned ward office and accordingly, after following the due process of law, the same has been done. The total number of residents who would be using the redeveloped public toilet block to be constructed by the Corporation would be as follows:- "Total House: 420 Total Adults: 1461 Female-696 Male-765 Total of above 10 yrs. Boys-33 Girls-40 Total of below 10 yrs. Boys-75 Girls-52 Total Public: 1661"
8.4. A budget of Rs. 2,09,61,500/- has been sanctioned for this work and technically verified by the Executive Engineer, H/ East Ward and the work order has been given. Apart from the aforesaid issues, it is important to understand the need and necessity of the hour. What is significant to note is the fact that the new toilet block will be coming up on the same place where the old existing toilet block was standing. The Plaintiff had never objected to the old existing 15 of 17 toilet block which was constructed in the year 2010-11 and details of the same is placed on record and it is only now that the Plaintiff has sought to object on the ground of title and entitlement to C.T.S. No. 418. Not a single document evidencing title or entitlement of the Plaintiff has been placed before the Court to support the impugned order though it has been admitted that Defendant No. 2 MHADA is the owner of C.T.S. NO. 418.
8.5. The primary objective of construction of toilet block is required to be considered. The State of Maharashtra under the Swachha Bharat Mission (Urban) has maintained that the scheme is implemented with the objective of ensuring open defecation free cities and scientific collection and processing of solid waste. The guidelines of Swachha Bharat Mission (Urban) Scheme of the Government envisages that beneficiary households will be targeted irrespective of whether they lived in authorized / unauthorized colonies of notified / non-notified slums under SBM (Urban) scheme. When the Plaintiff does not have title to C.T.S. No. 418 merely on the basis of the lay out, it cannot claim entitlement to the land where the old toilet block existed which does not belong to the Plaintiff. The old toilet block and the land beneath it never belonged to the Plaintiff 16 of 17 Federation and was on an open portion / space of C.T.S. NO. 418 with a definitive purpose and what has been done now is to redevelop and reconstruct the original dilapidated toilet block at the same place. Therefore the Plaintiff cannot claim entitlement to the land beneath the original toilet block or the area of the original toilet block or the structure of the original toilet block. The case of the Plaintiff therefore fails.
9. In view of the above discussion and findings, the impugned order dated 09.03.2021 needs to be interfered with and is quashed and set aside. The Appeal from Order (St) No. 9596 of 2021 stands allowed with no order as to cost.
10. In view of the Appeal from Order being allowed, no orders are required to be passed in Interim Application (st) No. 9597 of 2021. The same stands disposed of. [ MILIND N. JADHAV, J. ]