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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4583   OF  2009 [Arising out of Special Leave Petition (Civil) No. 12082 of 2009]

Sonu Babu Bhambid & Ors.  …Appellants

VERSUS

Dream Developers & Ors.        … Respondents

J U D G M E N T

S.B. 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 with regard to their rehabilitation on  

C.T.S. No. 82, the relevant conditions whereof read as under:

“3. Eligibility

There are a number of huts which are existing on  the slum property, whose names of occupant and

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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  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.   

4. Consent

Slum dwellers hereby agree and give consent to  participate in SPA as per DCR (10), Appendix IV.  If, however, the Developer is unable to implement  SRA 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  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 of commercial  

building on Survey No. 82.   

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  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

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No.  1  and  2  and  the  plaintiff  are  effective,  subsisting  and  binding  on  the  parties  and  accordingly  the  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  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 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 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, 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  ld.  Advocate  for  defendant  that  no  residential premises can 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  cannot  be  specifically  enforced,  the

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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.

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  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  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 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.

10. Appellants are said to have been in possession of the property in  

question as trespassers.  They are said to have acquired indefeasible title

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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 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  

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 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 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 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.  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

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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 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.

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.

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 shall  remain  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 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

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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.  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.

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. V.  

Bombay Environmental Action Group and Others [(2005) 5 SCC 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 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 before an interim order is  passed  and  in  particular  in  a  public  interest  litigation, the court must consider the question as  regards existence of a prima 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  without  giving  an  opportunity of hearing to him…”

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[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]

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 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.

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  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 under appeal  solely on the ground  that if it had considered the matter at the trial stage  it may have come to a contrary 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  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  unreasonably  or  capriciously  or  has

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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. 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 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/-.

……………………………….J. [S.B. Sinha]

..…………………………..…J.     [Deepak Verma]

New Delhi; July 21, 2009