Supreme Court of India
SONU BABU BHAMBID & ORS.versusDREAM DEVELOPERS & ORS.
- Citation
- 2009 INSC 930
- Decided
- 21 July 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The agreement terminated due to the absence of an eligibility certificate, the injunction was rightly denied, and the additional document could not be admitted without permission, so the appeal was dismissed.
Summary
The appellants, slum dwellers, entered into a rehabilitation agreement with the respondents, a developer, which required them to obtain an eligibility certificate before the scheme could be invoked. They failed to secure the certificate, yet the developer began commercial construction on the designated plot. The appellants sought a declaration of their right to a residential flat and an interim injunction to stay construction. The trial court denied the injunction, holding that without the eligibility certificate the agreement was void, a view affirmed by the High Court. On appeal, the Supreme Court reiterated that the eligibility certificate was a condition precedent, the agreement therefore terminated, and that the lower courts correctly refused the injunction; it also held that the appellant could not introduce a post‑judgment document without permission under Order XLI Rule 27 of the CPC. Consequently, the appeal was dismissed.
Issues considered
- The appellant's entitlement to an interim injunction pending the suit.
- Whether the failure to obtain an eligibility certificate renders the rehabilitation agreement void.
- The effect of the Development Control Regulations 1991, Reg. 57(4)(c) on the nature of permissible construction.
- The admissibility of additional evidence not part of the lower court record.
Legislation cited
- Code of Civil Procedure, 1908s. Order XLI Rule 27
- Development Control Regulations, 1991s. Regulation 57(4)(c)
- Specific Relief Act, 1963s. Section 41(e)
Subjects
interim injunctionslum rehabilitation schemeeligibility certificatecontract terminationstatutory interdictadditional evidenceCPC Order 41 Rule 27development control regulationsappellate discretion
Judgment
[2009] 10 S.C.R. 1176
A SONU BABU BHAMBID & ORS. •
v.
DREAM DEVELOPERS & ORS.
(Civil Appeal No. 4583 of 2009)
JULY 21, 2009
B
[S.B. SINHA AND DEEPAK VERMA, JJ.]
INJUNCTION:
c Interim injunction - Relevant factors to be taken into
consideration - Explained - HELD: When a court exercises
its discretionary jurisdiction, appellate court would be slow to
interfere except for sufficient and cogent reasons - In the
instant case, trial court on consideration of materials on record
D refused interim injunction - High Court rightly declined to
interfere with - Urban Development.
URBAN DEVELOPMENT:
Town planning - Rehabilitation of slum dwellers -
E Agreement between slum dwellers and developers to
construct residential accommodation for slum dwellers
provided they produce eligibility certificate and the plot
encroached upon by them is declared as slum area - Slum
dwellers failed to get required certificate - HELD: Grant of
F eligibility certificate was sine qua non for enforcement of
agreement and in its absence, agreement came to an end -
Assuming that modification of nature of construction was
permissible, in absence of modification order, statutory
interdict gets attracted and developer could not be permitted
to raise construction for residential purpose - Development
G
Control Regulations 1991 - Regulation 57(4)(c).
CODE OF CIVIL PROCEDURE, 1908:
Or. 41 - r. 27 - Production of additional evidence in
H 1176
SONU BABU BHAMBID & ORS. v. DREAM 1177
DEVELOPERS & ORS.
appellate court - HELO: Filing of documents as additional A
evidence must be in terms of Or. 41 r. 27 - Supreme Court
Rules, 1966.
The appellants, (slum dwellers) and/or their
predecessors-in-interest had encroached upon a B
property bearing CTS No.61. An agreement dated
26.6.2005 was entered into between the parties with
regard to rehabilitation of the appellants on CTS No.82.
~ One of the conditions of the agreement was that the
appellants would obtain eligibility certificate from the C
competent authority. However, the respondents started
construction of commercial building on Survey No.82.
The appellants filed a suit in the City Civil Court for a
declaration inter alia that the plaintiffs were entitled to be
provided a flat each of carpet area of 225 sq.ft. on CTS
No.82. An interim injunction was prayed that pending final D
disposal of the suit, construction activities on CTS No.82
be stayed. The trial court held that as the appellant failed
to obtain essentiality certificate and CTS no.61 was not
declared as slum area, the question of taking recourse of
the Slum Rehabilitation Scheme did not arise. The appeal E
filed by the slum dwellers having been dismissed by the
High Court, they filed the appeal.
Dismissing the appeal, the Court
F
HELD: 1.1. A court before passing an order of
injunction must take into consideration three relevant
factors, viz., prima facie case, balance of convenience and
irreparable injury.Furthermore, when a court exercises
its discretionary jurisdiction, the appellate court would be
slow to interfere therewith unless sufficient and cogent G
reasons exist therefor. [Para 16 and 17] [1184-E; 1185-C]
Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay
Environmental Action Group and Ors. (2005) 5 SCC 61;
Mandali ranganna & Ors. etc. v. T. Ramachandra and Ors. H
1178 SUPREME COURT REPORTS [2009] 10 S.CR.
A (2008) 11 SCC 1; Shridevi and Anr. v. Muralidhar and Anr.
(2007) 12 SCALE 234 and Manjunath Anandappa v.
Tammanasa (2003) 10 SCC 390, referred to.
1.2. In the instant case, it is not in dispute that for the
8 purpose of attracting the rehabilitation scheme the area
in question should be declared as a slum area. It is only
for the said purpose, the appellants were required to
obtain eligibility certificate. Grant of eligibility certificate
was, thus, sine qua non for enforcement of the
C agreement dated 26.06.2005 and consent was merely one
of the terms of the contract. Clause 3 of the said
agreement categorically provides that in case the
occupants fail to get such certificate, the agreement
would ipso facto come to an end and they would have no
right against the party of the other part. In absence of any
D eligibility certificate, C.T.S. No.61 could not be declared
to be a slum area and, thus, the question of the scheme
of rehabilitation and/or relocation of the occupants
thereof would not arise. The High Court cannot be said
to have committed any legal infirmity in passing the
E impugned order. [Para 1O and 12) [1182-G-H; 1183-A-B-
E-F]
1.3. The City Civil Court has categorically held that
only commercial constructions could be raised on C.T.
F .No.82. Assuming that in terms of Regulation 57 (4)(c) of
the Development Control Regulations, 1991 modification
in the nature of construction was permissible in law, but
unless such an order is obtained, the respondents would
not be entitled to raise any construction other than the
G one provided for in the Regulations. The parties to the
agreement did not file any application for modification of
the plan. So long as such modification is not granted, the
restriction noted by the courts below shall remain
operative. It is in that sense, statutory interdict shall have
H a role to play in terms whereof the respondents could not
SONU BABU BHAMBID & ORS. v. DREAM 1179
DEVELOPERS & ORS.
be permitted to raise constructions for residential A
• purposes. [Para 13 and 14] (1183-F-G; 1184-A-B]
2. The appellants merely filed an application before
this Court for bringing the additional document on
record. The said document was not filed before the City
B
Civil Court. It was, therefore, obligatory on the part of the
appellants to file an application for permission to file the
said document by way of additional evidence in terms of
~
Order XLI Rule 27 of the Code of Civil Procedure, 1908.
The Supreme Court Rules prohibit placing reliance upon
any document which was not part of the records of the c
courts below, save and except with the permission of the
Court. JPara and 15] (1184-B-D]
Case Law Reference :
D
. (2005) 5 sec 61 referred to Para 16
(2ooa) 11 sec 1 referred to Para 16
(2007) 12 SCALE 234 referred to Para 16
(2003) 10 sec 390 referred to Para 17 E
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4583 of 2009.
From the Judgment & Order dated 08.04.2009 of the High
Court of Judicature at Bombay in Appeal From Order No. 353 F
of 2009.
V. Shekhar, Anjani K. Singh, Zangpo Sherpa, Prasanth B.
and V.K. Sidharthan for the Appellants.
G
Sunil Gupta, Hemant Mehta and Jatin Zaveri for the
Respondents.
The Judgment of the Court was delivered by
H
1180 SUPREME COURT REPORTS [2009] 10 S.C.R.
A S.8. SINHA, J. 1. Leave granted.
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
8
with regard to their rehabilitation on C.T.S. No. 82, the relevant
conditions whereof read as under:
"3. Eligibility
c 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
0 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.
E 4. Consent
Slum dwellers hereby agree and give consent to
participate in SPA as per OCR (10), Appendix IV. If,
however, the Developer is unable to implement SRA
F 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
G 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."
3. Inter alia on the premise that the appellants failed to
obtain eligibility certificate, the respondents started construction
H
SONU BABU BHAMBID & ORS. v. DREAM 1181
DEVELOPERS & ORS. [S.B. SINHA, J.]
of commercial building on Survey No. 82. A
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 Hon'ble Court may be pleased to declare that B
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 c
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 D
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 E
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 F
19th July, 2007 on CTS No. 82 situated at Moolgaon,
Andheri (E), Mumbai be stayed in the interest of justice."
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, G
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
Id. Advocate for defendant that no residential premises can H
1182 SUPREME COURT REPORTS [2009] 10 S.C.R.
A 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
B canr.ot be specifically enforced, the reliefs as prayed in the
notice of motion cannot be granted ... "
7. An appeal preferred thereagainst before the High Court
has been dismissed by reason of the impugned judgment.
C 8. Mr. V. Shekhar, learned senior counsel appearing on
behalf of the appellants, would contend that the City Civil Court
and consequently the High Court committed a serious error in
holding that no residential building could be constructed on
C.T.S. No. 82. In this connection, our attention has been drawn
D to a letter dated 8.05.2009 issued by the Municipal
Corporation of Greater Mumbai addressed to the Secretary,
Durga Nagar Rahiwasi Sangh that in case constructions of the
buildings are not commenced, the permission can be modified
in terms of Regulation 57(4)(C) of Development Control
E Regulations, 1991 and in that view of the matter as construction
of a residential building is not prohibited by law, the provisions
of Section 41 (e) of the Specific Relief Act will have no
application.
9. Mr. Sunil Gupta, learned senior counsel appearing on
F behalf of the respondents, on the other hand, objected to
consideration of the additional document, viz., the letter dated
8.05.2009, on the premise that the same was procured
subsequent to the passing of the impugned order.
G 10. Appellants are said to have been in possession of the
property in question as trespassers. They are said to have
acquired indefeasible title thereto by alleged possession for
more than 30 years. It is not in dispute that for the purpose of
attracting the rehabilitation scheme the area in question should
H be declared as a slum area. It is only for the said purpose, the
SONU BABU BHAMBID & ORS. v. DREAM 1183
DEVELOPERS & ORS. [S.B. SINHA, J.]
appellants were required to obtain eligibility certificate. Grant A
,_ of eligibility certificate was, thus; .sine qua non for enforcement
(
' of the agreement dated 26.06.2005. As Clause 3 of the said
agreement categorically provides that in case the occupants
fail to get such certificate, the agreement would ipso facto come
to an end and the occupants would have no right against the B
party of the other part, we are of the opinion that the High Court
cannot be said to have committed any legal infirmity in passing
the impugned order.
>
11. Respondents contend that as the eligibility certificate
has not been obtained by the appellants, the agreement itself
c
has come to an end. A finding to that effect has concurrently
been arrived at by both the courts below.
12. Furthermore, indisputably, 66 persons were occupying
the same plot No. 61. The suit, however, has been filed by 33 D
persons. The rest 33 persons, thus, have accepted that they
had no right under the agreement.
Consent of the appellants for their rehabilitation on C.T .S.
No. 82, whereupon strong reliance has been placed by Mr.
E
Shekhar, in our opinion, is not of much significance. The
consent on the part of the appellants was merely one of the
terms of the contract. But, if in absence of any eligibility
certificate, C.T.S. No. 61 could not be declared to be a slum
area, the scheme of rehabilitation and/ or relocation of the
F
occupants thereof, in our opinion, would not arise.
13. We will assume that in terms of Regulation 57(4)(C)
of the Development Control Regulations, 1991 modification in
the matter of nature of construction was permissible in law.
G
It is one thing to say that such modification can be directed
to be granted but it is another thing to say that unless such an
order is obtained, the occupants of the land would not be
entitled to raise any construction other than the one provided
for in the regulations itself.
H I
1184 SUPREME COURT REPORTS (2009] 10 S.C.R
A 14. The learned City Civil Court has categorically held that
only commercial constructions could be raised on C.T.S. No.
82. The parties to the agreement did not file any application
for modification of that plan. So long such modification is not
granted, in our opinion, the restriction noted by the courts below
B shall r~main operative. It is in that sense statutory interdict shall
have a role to play in terms whereof the respondents could not
be permitted to raise constructions for residential purposes.
15. In any event, we, however, must notice that the
C appellants herein had merely filed an application for bringing
the additional document on record. Indisputably, the said
document was not filed before the City Civil Court. It was,
therefore, obligatory on the part of the appellants to file an
application for permission to file the said document by way of
additional evidence in terms of Order XLI Rule 27 of the Code
D of Civil Procedure. The Supreme Court Rules prohibit placing
reliance upon any document which was not part of the records
of the courts below, save and except with the permission of the
court.
E 16. A court of law before passing an order of injunction
must take into consideration three relevant factors, viz.. prima
facie case, balance of convenience and irreparable injury.
This Court in Bombay Dyeing & Manufacturing Co. Ltd.
F V. Bombay Environmental Action Group and Others ((2005)
5 sec 61] held as under:
"22. This Court at this stage is concerned with an interim
order passed by the High Court. The writ petition is still to
be heard. Affidavits between the parties are yet to be
G exchanged. The objection as regards maintainability of the
writ petition is also required to be finally determined by the
High Court itself. This Court at this stage cannot, thus, enter
into all the contentious questions raised in' these appeals.
But, there cannot be doubt or dispute whatsoever that
H before an interim order is passed and in particular in a
SONU BABU BHAMBID & ORS. v. DREAM 1185
DEVELOPERS & ORS. [S.B. SINHA, J.]
,_ public interest litigation, the court must consider the 'A
question as regards existence of a prim:-: facie case,
balance of convenience as also the question as to whether
the writ petitioners shall suffer an irreparable injury, if the
,.injunction sought for is refused. The courts normally do not
pass an interlocutory order which would affect a person B
without giving an opportunity of hearing to him ... "
[See also Mandali Ranganna and Ors. etc. v. T.
Ramachandra and Ors. (2008) 11 SCC 1 and Shridevi and
Anr. V. Muralidhar and Anr. 2007 (12) SCALE 234]
c
17. Furthermore, when a court exercises its discretionary
jurisdiction, the appellate court would be slow to interfere
therewith unless sufficient and cogent reasons exist therefor.
In Manjunath Anandappa v. Tammanasa [(2003) 10 D
SCC 390], this Court held:
"36. It is now also well settled that a court of appeal should
not ordinarily interfere with the discretion exercised by the
courts below.
E
37. In U.P. Coop. Federation Ltd. v. Sunder Bros. the law
is stated in the following terms: (AIR p. 253, para 8)
"8. It is well established that where the discretion vested
in the court under Section 34 of the Indian Arbitration Act
F
has been exercised by the lower court the appellate court
should be slow to interfere with the exercise of that
discretion. In dealing with the matter raised before it at the
appellate stage the appellate court would normally not be
justified in interfering with the exercise of the discretion
G
under appeal solely on the ground that if it had considered
the matter at the trial stage it may have come to a co[ltrary
conclusion. If the discretion has been exercised by the trial
court reasonably and in a judicial manner the fact that the
appellate court would have taken a different view may not
H
1186 SUPREME COURT REPORTS [2009] 10 S.C.R.
A justify interference with the trial court's exercise of
discretion. As is often said, it is ordinarily not open to the
appellate court to substitute its own exercise of discretion
for that of the trial Judge; but if it appears to the appellate
court that in exercising its discretion the trial court has acted
B unreasonably or capriciously or has ignored relevant facts
then it would certainly be open to the appellate court to
interfere with the trial court's exercise of discretion. This
principle is well established; but, as has been observed
by Viscount Simon, L.C., in Charles Osenton & Co. v.
c Johnston, AC at p. 138:
'The law as to the reversal by a court of appeal of an order
made by a Judge below in the exercise of his discretion
is well established, and any difficulty that arises is due only
to the application of well-settled principles in an individual
D case.' "
18. For the reasons aforementioned, there is no merit in
this appeal which is dismissed accordingly with cost. Counsel's
fee assessed at Rs. 10,000/-.
E
R.P. Appeal dismissed. -
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