IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL    NO.1973 OF 2019    

(  ARISING OUT OF SLP (C) 15944 OF 2018)

LULLU VAS (SINCE DECEASED)                                 …APPELLANT(s)

THROUGH LRS            

                                   VERSUS

STATE OF MAHARASHTRA & ORS.                        …RESPONDENT(S)

      WITH

CONTEMPT PETITION (C) NO. 123 OF 2019 IN SLP (C) 15944 OF    

2018    

LULLU VAS (SINCE DECEASED)                                …APPELLANT(s)

THROUGH LRS            

                                    VERSUS  

DEVCHAND PIRAJI WAGHMARE               …ALLEGED CONTEMNOR(S)

& ORS.

JUDGMENT    

N.V. RAMANA, J.    

1. Leave granted.

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REPORTABLE

2. The present appeal  arises out of the  impugned  judgment dated

07.06.2018, passed by the High Court of Judicature at Bombay in

Writ Petition No. 1507 of 2011 with Notice of  Motion No.206 of

2018, wherein the High Court allowed the Writ Petition preferred

by the respondent nos. 4 and 5 and set aside the order of the

High­Power  Committee (hereinafter referred to as “HPC”) dated

5.02.2011 along with the consequential orders of the Slum

Rehabilitation Authority (hereinafter referred to as “SRA”)

(respondent no. 3). Further, the High Court also directed

respondent no. 3 to undertake necessary actions for the

redevelopment of the suit property.  

3. Brief facts necessary for the adjudication of the case are as follows:

The Government of Bombay acquired the disputed property (now

Worli Estate Scheme No. 58) prior to 1945, and vested the same in

the Municipal Corporation of Greater Mumbai (hereinafter referred

to as “MCGM”). Thereafter, on 04.06.1945, the appellants’

predecessor­in­interest, Lullu Vas, submitted an application to the

MCGM seeking lease of the said land for residential purposes and

paid an earnest money of Rs. 8,232. The appellants contend that

the MCGM decided to give leasehold rights in perpetuity to Lullu

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Vas. At that time, about 70 slum structures were pre­existing on

the said land. Since Lullu Vas demanded possession, on

05.11.1965, the MCGM handed over symbolic possession of  the

said plot on “as is where is basis”­ when it was still occupied by

the encroaching hutments.  

4. In 1971, the Maharashtra Slum Areas Act (hereinafter referred to

as “Slum Act”) was enacted. Subsequently, in 1976 photo­passes

were issued to the slum dwellers who were residing in the disputed

area and the said area attained the status of the declared slum,

entitled for redevelopment under Regulation 33 (10) of the

Development Control Regulations read with the provisions of the

Slum Act.  

5. In 1996, the slum dwellers residing on the said land formed a co­

operative  housing  society “New Sagar  Vihar” (respondent  no.  4)

and submitted a proposal for slum rehabilitation to the SRA, and

the same was approved by issuing a Letter of Intent (hereinafter

referred to  as  “LoI”)  and an  Intimation of  Approval (hereinafter

referred to as “IoA”) on 16.06.1999. In furtherance of the above, a

commencement certificate was issued on 13.10.1999 and

respondent no.  4 appointed a developer (respondent no.  5)  and 3

promoter for the implementation of the slum rehabilitation scheme

and to build new flats.

6. Meanwhile, Lullu Vas and her family started residing outside

India.  Lullu  Vas  expired on 04.02.1997. In  2008,  Mr.  Shailesh

Chheda, who claimed that he was the general power of attorney

holder of the appellants (legal representatives of Lullu Vas), filed

W.P No.  2714/2008 before the High Court  against the State  of

Maharashtra and six others challenging the order of the SRA dated

16.06.1999 whereby the SRA had issued the LoI and IoA to

respondents no.  4 and 5.  The writ petition was withdrawn  vide

order  dated  17.12.2008,  with liberty to the  appellants to file  a

representation before the HPC.  

7. Mr. Shailesh Chheda thereafter approached the HPC in Appeal No.

148 of 2008, seeking quashing of the order dated 16.06.1999

granting LoI in favour of the respondents no. 4 and 5. The HPC,

upon hearing the parties,  vide  order dated 20.06.2009 concluded

that the land belonged to the respondent no. 3 (MCGM) and the

appellants are lessees for  999 years.  However, as the LoI had

lapsed and respondents no. 4 and 5 had filed a separate

application for revalidation of the LoI dated 16.06.1999 before the

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SRA, the HPC directed the SRA to hear both the parties and pass

orders on the merits of the case. It may be noted that the aforesaid

first order of the HPC has not been challenged by the

Respondents.

8. Vide  order dated 23.08.2010, the CEO, SRA, after hearing both

sides, revalidated the LoI in favour of the respondents no. 4 and 5.

The above order of revalidation by the SRA was challenged by the

appellants in Appeal No. 2 of 2011 before the HPC. This appeal

was allowed by order dated  05.02.2011 and consequently, the

order of the CEO, SRA dated 23.08.2010, was set aside.

Consequently,  vide  order dated 06.09.2013, the SRA allowed the

application preferred by the appellants seeking to record the

scheme.

9. Subsequent to the aforesaid order of the SRA, respondent no. 2

(MCGM) issued letter dated 17.01.2015 withdrawing/cancelling its

earlier orders, decisions and communications which were claimed

as acceptance of the claim of late Lullu Vas as lessees, observing

that the claims were founded upon erroneous representation

based on legally  inadmissible documents.  It  was found that not

only were the lease documents invalid for want of adequate seal

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and signature, but also that the appellants had failed to make any

effort to remove the encroachments. Moreover, in the absence of a

registered lease deed, neither the original applicant nor the

appellants herein have any rights whatsoever in the disputed

property.  

10. Aggrieved, the appellants filed LC Suit No. 456 of 2016 in the City

Civil Court, challenging the aforesaid letter dated 17.01.2015

issued by respondent no. 2 to be illegal and void. Additionally, the

appellants also sought for a declaration that they are the lessees of

MCGM. It is to be noted that this suit is still pending final

adjudication. In the said suit, the appellants had filed Notice of

Motion No. 1110 of 2016 seeking temporary injunction against the

respondents from obstructing or disturbing the appellants’

possession. Vide order dated 07.03.2018, the Notice of Motion was

partly allowed and the respondent no. 2 and 4 were temporarily

restrained,  pending suit, from acting upon or  implementing  the

decision/communication dated 17.01.2015.  

11. In the  meantime, in  2011, respondents  no.  4  and  5 filed  Writ

Petition No. 1507 of 2011, which is the subject matter of challenge

before us. By way of this Writ Petition, respondents no. 4 and 5

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challenged the second order passed by the HPC dated 05.02.2011

cancelling the LoI issued in their favour. Subsequent to the order

dated 07.03.2018 in Notice of Motion No. 1110 of 2016 in LC Suit

No. 456 of 2016 wherein the temporary injunction was granted in

favour of the appellants, the respondents no. 4 and 5 preferred

Notice of Motion No. 206 of 2018, seeking stay of the order dated

05.02.2011 in Appeal No. 2 of 2011 before the HPC.

12. Vide  order dated 07.06.2018, the court disposed of the Writ

Petition filed by respondents no. 4 and 5 by setting aside the order

of the HPC dated 05.02.2011, and quashing and setting aside the

consequential orders or letters of the SRA dated 06.06.2011 and

06.09.2013.

13. The High Court, while disposing of the Writ Petition, observed that

at the time the application was preferred by Lullu Vas, the

disputed property was already encroached upon by slum dwellers.

The numbers of these slum dwellers kept on increasing due to the

inaction of the appellants. In light of the same, the appellants’ plea

seeking execution of the lease in their favour stood frustrated and

the appellants therefore could not object to the redevelopment of

the said land.  Moreover, the slum  dwellers agreed to join the

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rehabilitation scheme and 70% of the dwellers appointed

respondent no. 5 as their developer in compliance with Clauses

1.11 and 1.15 of Appendix­IV of the Development Control

Regulations. On the other hand, the appellants failed to show any

such compliance. Furthermore, taking into account the delay in

implementation of the rehabilitation scheme, the High Court

rejected the appellants’ plea seeking a stay on the redevelopment.

Aggrieved by the aforesaid impugned order,  the appellants have

preferred this Special Leave Petition.  

14. The learned Senior Counsel on behalf of the appellants, Dr. A. M

Singhvi, submitted that the High Court was not justified in holding

that there is no lease granted in favour of the appellants despite

the letter dated 22.07.1976 and the subsequent correspondence

confirming the lease granted in perpetuity in favour of the

appellants. On the contrary, the appellants have the best rights of

lease in their favour  as the  corporation itself  has recorded the

names of the appellants as lessees, as has the estate department.

Further, the corporation has  failed to prove  that  the appellants

have breached any terms of the lease agreement. Additionally,

respondent no. 2,  who  has failed to clear the encroachments,

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should not be allowed to benefit from its inaction. Therefore, the

said land is validly vested upon the appellants­lessees, and being

private land, the Slum Act cannot be enforced on the same. The

learned counsel also contended that the LoI obtained by

respondents no. 4 and 5 was obtained on the false representation

that the State of Maharashtra was the real owner of the property.

The learned counsel stated that the order passed by the HPC in

favour of the appellants, which has attained finality, as well as the

order of the Trial Court dated 07.03.2018, wherein the Notice of

Motion filed in LC Suit No. 456 of 2016 was partly allowed and the

respondent no. 2 was temporarily restrained, strengthens the

presumption of  prima­facie  case  in their  favour. The counsel for

appellants rested  his submissions  by stating that  not granting

protection at the present stage will  make the pending civil  suit

infructuous.  

15. On the contrary, the learned Senior Counsel Mr. Shekhar

Naphade, appearing for respondent no. 3 (SRA), submitted that the

appellants have no locus as they, being prospective lessees, do not

have any interest in the property. In the present case, the land­

owning  authority is the  municipality,  and hence the  appellants

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have no role to play. Even if they had any semblance of a right in

equity, it stands extinguished by the application of specific

provisions of the Slum Act which, being a welfare legislation, takes

precedence over the rights of the appellants and gives the

government the power to acquire property in the slum

rehabilitation area. Furthermore, the Slum Act also empowers the

competent authority to declare a certain area as a slum

rehabilitation area.   The statute itself gives preferential rights to

the society of the slum dwellers by providing that where 70 % or

more of the eligible hutment­dwellers  in a slum agree to  join a

rehabilitation scheme, it may be considered for approval. Hence,

the entire statutory scheme cannot be frozen at the instance of the

appellants and a statutory authority cannot  be injuncted from

performing its duty. Moreover, in the pending civil Suit being LC

Suit No. 456/2016 before the City Civil  Court,  preferred by the

appellants seeking a declaration that they are lessees, they have

not made respondent no. 3 (SRA) a party to the suit, although the

injunction sought is intended against the SRA.  Moreover, any

declaration made therein may bind respondent no. 2 (MCGM), but

not the SRA. The counsel rested his argument by stating that the

prolongation of this dispute is contrary to public interest. 10

16. Learned Counsel Mr. A.N. Nadkarni, Additional Solicitor General

appearing on behalf of respondent no. 2 concurred with the

submissions made by Mr. Naphade, wherein he averred that the

appellants do not have any locus as they have no interest in the

said property. Mr. Nadkarni further submitted that the appellants

do not have any right in the suit property, be it factual or legal. In

order to substantiate his claim, the counsel relied upon Section

107 of the Transfer of Property Act, 1882, which mandates that a

lease of immovable property for a period exceeding one year should

be registered. He also relied on Sections 70 and 71 of the Mumbai

Municipal Corporation Act, 1888 (hereafter Municipal Act), which

prescribe the mode of executing contracts and indicate that any

contract made in contravention to the same shall not be binding

on the corporation.   However, the appellants have not complied

with any of the aforesaid provisions. Moreover, the physical

possession was never vested on the appellants as the land was

encroached upon by the slum dwellers. Hence, the entire purpose

of the lease  stood completely frustrated.  Further, the  Slum Act

being a special statute enacted for redevelopment of the slum

areas takes precedence over the Municipal Corporation Act. The

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counsel submitted that once the SRA comes into the picture, the

MCGM vanishes as the entire management will be taken up by the

SRA. In the absence of any established interest over the suit

property, the appellants may be entitled for the grant of certain

damages only. In the present case, public interest takes

dominance over the half­baked rights of the appellants.

17. Learned Senior Counsel Mr. Shyam Divan, appearing on behalf of

respondent no. 4 submitted that  respondent no. 4 (society) has a

membership of 106 slum dwellers. It is the statutory right of the

respondent no. 4 (society), acting in furtherance of the interest of

the slum dwellers to be rehabilitated  in situ,  to selecting the

developer through  which they  will implement the scheme. The

respondent no. 4­ Society has the overwhelming support of more

than 70% of the slum dwellers for the implementation of the SRA

Scheme. On the contrary, the appellants have not applied for any

rehabilitation scheme nor is there anything on record to show that

they are supported by 70% of the hutment dwellers so as to

redevelop the said land. There is already a pending civil suit being

LC Suit No. 456 of 2016, wherein the appellants sought for the

specific performance of the lease agreement based on the

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application of allotment dated 04.06.1945,  which is hopelessly

time barred as the same was preferred after 71 years. Lastly, the

appellants have not accrued any rights in their favour as there is

no registered document.   The court should decide the matter on

the balance of convenience as granting the relief to the appellants

will be tantamount to defeating the object of the Slum Act which

provides the slum dweller the right to seek for  in situ

rehabilitation.  Any relief in favour of the appellants  will cause

hardship to the slum dwellers whose accommodation have been

demolished for redevelopment.

18. Learned Senior Counsel Mr. Kapil Sibal, appearing on behalf of the

developers  submitted  that  respondent  no.  5  (developer)  has  the

consent of 70% of the slum­dwellers, which is a mandatory

requirement under the Development Control Regulations. On the

contrary, neither does the Power of Attorney provide for the

development of the slum  nor  have the appellants submitted a

proposal for the redevelopment scheme. Further, pursuant to its

contractual obligations, respondent  no. 5  has incurred a  huge

expenditure on the shifting of the slum dwellers and demolition of

the existing structures, as they have provided alternate

13

accommodation on rental basis by paying an amount of Rs.

8,000/­ monthly. Lastly, the learned Senior Counsel has

contended that no measures can be enforced against them, as they

have not been arrayed as a party in the civil suit.

19. Learned Senior Counsel  Mr. Basava Prabhu Patil, counsel on

behalf of 83 hutment dwellers being intervenors herein, submitted

that I.A No. 167398/2018 and I.A No. 173077 of 2018 have been

filed by 82 slum dwellers who have executed individual affidavits

in support of the implementation of the SRA Scheme being

implemented by respondent nos. 3 to 5. In total, respondent no. 4

society comprises of 106  hutments. The intervenors state that

97.16%,  i.e., 103 dwellers out of 106 dwellers support the

implementation of the SRA Scheme.

20. Learned Senior Counsel  Mr. Niraj Kishan Kaul­ appearing on

behalf of 26 hutment dwellers being intervenors herein, while

supporting the appellants, submitted that 26 individual

applications have been filed by these slum dwellers, who are

challenging the fundamental basis of the claim,  i.e.,  70% of the

dwellers supporting the respondent nos. 3 to 5.   The main

contention of the learned Senior Counsel was that the consent of

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70% should be proved from the time of the initiation itself, that is

from the date of the implementation of the scheme. But the same

has  not  been  complied  with. In this regard, there is  a lack  of

proper scrutiny.

21. Per contra, the counsels on behalf of the respondents stated that

the slum dwellers have no right to be impleaded in this SLP as a

party. They did not raise any grievance during the pendency of the

Writ Petition before the High Court. Further, there exists a specific

mechanism for the redressal of grievances under Section 35 of the

Slum Act, but the same has not been resorted to. Lastly, it was

brought to our notice that of the 26 slum dwellers, constituting the

second set of  intervenors, 18 have withdrawn their support and

are now favouring the SRA for the implementation of the scheme.

22. Even though the parties have argued at length and produced

multiple documents regarding the lease­holding rights in dispute,

at the outset, we would like to clarify that at this stage of litigation

we are not inclined to attempt to resolve conflicts of evidence on

affidavit  or to  decide  questions of law on merits  which call for

elaborate arguments or detailed scrutiny, as these issues are the

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subject matter of the trial. The aforesaid contentions raised by the

parties are to be resolved during the trial.

23. Heard the learned counsels for the parties.

24. Considering the pending civil suit before the trial court, the limited

question before us is whether the impugned order passed by the

High Court, allowing the respondents to proceed with the

redevelopment of the land, can be sustained in the eyes of law.  

25. The  adjudication  of the  dispute  before  us  has to  be  based  on

principles of equity. The party seeking the remedy has to make out

a prima facie case on merits,  and has to satisfy the court  that

there is some basis to its claim regarding the existence of his right.

Further, the court  must balance the comparative hardship or

mischief which is likely to occur from withholding the relief,

against that which would likely arise from granting it. It has to be

further established that non­interference by the court would result

in “irreparable injury” to the party seeking relief and that there is

no other remedy available to the party except to grant the relief

sought.   

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26. In the present case the genesis of the appellants’ right is a lease

which was allegedly entered into between the appellants’

predecessor in interest and MCGM, which allegedly accepted the

application and the premium amount on 17.11.1965. Respondent

no.  2 has vehemently  denied the  existence of  any  lease on  the

ground that mere filing of an “application” and an endorsement

made thereunder of its acceptance does not result in a “concluded

contract” which creates any right. Further, counsel for respondent

no. 2 averred that the original application can only be treated as

an “offer to enter into a lease” and the amount paid i.e., Rs.8,232,

was only in the nature of earnest money. Respondent no. 2 further

contended that in any event, the offer which allegedly came to be

accepted on 05.11.1965 was not in the required form as prescribed

under the Municipal Act. Respondent no. 2 has also vehemently

argued that Section 70 of the Municipal Act was not complied with

as the said document has neither been duly sealed nor does it

have the signature of the competent authority. Therefore,

respondent no. 2 submitted that as per the provisions of Section

71 of the Municipal Act  the said  lease  is  not binding upon the

corporation.  

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27. It may be noted that the very basis of the appellants’ right, i.e., the

lease deed, is itself disputed as there exists no registered

document to that  effect. It is  pertinent to  note  herein that the

appellants have taken the plea that by paying consideration

towards the leasehold rights they now have a vested interest over

the suit property. Hence, without any alleged violation of the

conditions of the lease, the appellants claim that the revocation of

their rights by the respondent no. 2 is  malafide. In order to

substantiate their claim, the appellants have averred that the

name of the appellants appears in the records of the Estate

Department as the lessees. Furthermore, our attention has been

drawn to the fact that the first order of the HPC, dated 20.06.2009,

declares the appellants to be lessees for 999 years. As the

aforementioned order has not been challenged by the respondents,

it  has now attained finality. However, bearing in mind that this

very issue is the subject matter of the pending civil suit, we refrain

from making any observations regarding the same.  

28. While  taking  into consideration the rights of the appellants,  we

must also not lose sight of the fact that the Slum Act is a beneficial

legislation meant to ameliorate the poor condition of slum

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dwellers.  (See  Balasaheb Arjun Torbole v. Administrator and

Divisional  Commissioner.,  (2015)  6  SCC 534).  The legislative

purpose behind this enactment is to provide statutory protection

to the rights of slum dwellers in furtherance of their fundamental

right to shelter and other basic amenities, enabling them to lead a

dignified life as reflected in the Constitution. As such, where the

rights of the appellants need to be analysed in light of the Slum

Act, it is necessary to balance the interests of the appellants with

that of the slum dwellers. In the present case, the slum dwellers,

who are the primary beneficiaries of the redevelopment scheme,

are not only at risk of losing their shelter, but also their means of

livelihood.

29. The averments made by the respondents reveal that pursuant to

the implementation of the Slum Act, more than 70% of the slum

dwellers formed respondent no. 4 (the housing society) and sought

rehabilitation on the site in furtherance of their statutory rights.

Further, respondent no. 5 has averred that demolition of the

existing structures has already been initiated and the shifting of

the slum dwellers is ongoing. The respondent no. 5 has brought to

our notice that alternate accommodation for the slum dwellers has

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been arranged on a rental basis. But, owing to the ongoing

litigation over the suit property, redevelopment has been pending

for more than eight years. It is to be noted that ultimately it is the

slum dwellers  who are  suffering.  There is  nothing  on record to

show that they have the support of 70% of the slum dwellers as

mandated by the statute. Moreover, the appellants can be

adequately compensated in the event of their success in the trial

and, as such, have failed to prove any irreparable  injury which

cannot be remedied.  In a situation such as this, where rights of

the parties have not yet crystalized, and no irreparable injury can

accrue to the plaintiff pending trial, the entire case then revolves

around the principles of comparative convenience.

30. The balance of convenience in the present case tilts in favour of

the  respondents,  as  the completion of the scheme  is in greater

public interest. However, it is noteworthy to observe that the

appellants have vehemently contended that they have paid

consideration in exchange of the lease­hold right  which is the

subject matter of the trial. In order to substantiate their claim, the

appellants have produced  multiple documents on records, the

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genuineness of which is seriously doubted by the respondent

authorities.  

31. The main grievance of the appellant’s counsel is that in case they

succeed in the trial, they may not be placed in a position to enjoy

the benefits arising out of the suit property. The counsel

contended that their interest can be protected only if respondent

no. 5 (developer)  is  injuncted from disposing of  50% of the free

saleable area.  

32. It is to be noted that no material was produced before us so as to

ascertain the quantum of damages that may have accrued to the

appellants.  Further,  we cannot  prohibit respondent  no. 5 from

disposing  of the free  saleable  area,  as it is  only  performing its

contractual obligations and cannot be penalized for any

irregularity  committed  by the respondent  authorities.  A  specific

averment has been made by respondent no. 2 that, in the event

the appellants succeed before the trial court, they shall be entitled

to adequate damages.  

33. Taking into consideration the facts and circumstances of the case,

we grant the appellants the liberty to make such a prayer,

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supported by relevant  materials, before the trial court in the

pending suit being LC Suit No. 456 of 2016. Further, the

appellants  are granted the liberty to implead  necessary  parties

before the trial court. The trial court is at liberty to consider such

relief in accordance with law.  

34. In view of the pending civil suit, any observation made by the High

Court which affects the merit of the matter is hereby set aside. Any

observations made herein shall  not act  in prejudice against the

appellants during the trial on merits.  

35. The appeal is disposed of in the aforesaid terms. In light of this

Judgment, it is not necessary to pass any orders in the Contempt

Petition no. 123 of 2019 preferred by the appellants, which hereby

stands disposed of. Pending applications, if any, shall also stand

disposed of.  

……………………………..J. (N. V. Ramana)

……………………………..J. (Mohan M. Shantanagoudar)

NEW DELHI, FEBRUARY 22, 2019.

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