1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO. 255 OF 2010 IN WRIT PETITION NO. 396 OF 2010. Nitin Gopal Dhadve & Ors. ..Petitioners. vs. Municipal Corporation of Greater Mumbai. ..Respondent. And A.A. Estates Pvt. Ltd. ..Intervenor. .... None for Petitioners. Ms.T.H. Puranik, for Respondent No.1. Mr. P.K. Dhakephalkar, Senior Counsel, a/w. Mr. Tushar Gujjar, i/b. Ashwin Ankhad & Asso, for intervenor. .... CORAM : S.J. KATHAWALLA, J. DATE : 7TH MAY 2010. P. C. By this notice of motion, the intervenor/developer seeks the following relief :- “This Court be pleased to clarify that the respondents are entitled to enforce the eviction order passed by the ଇnquiry officer under the provisions of section 105-B of the Mumbai Municipal Corporation Act, dated 31st October 2009, against the petitioners and to forthwith direct the petitioners to vacate their respective premises and shift to transit camp constructed on the same property.” 2. By the above writ petition, the petitioners had impugned the judgments passed by the learned Judge of the City 2 Civil Court, Mumbai, all dated 10th February 2010 whereunder the appeals filed by the petitioners impugning the orders of the inquiry officer of the respondent Corporation under section 105-B of the Mumbai Municipal Corporation Act dated 31st October 2009, were dismissed. 3. The writ petition was heard finally at the admission stage. However, as recorded in the order dated 2nd March 2010, the learned Advocate appearing for the petitioners on instructions had submitted that if the developer/intervenor agrees to abide by the agreement dated 2nd August 2003 which is annexure-A-1 to the compilation of documents tendered by the petitioners, the petitioners will not press any of the contentions/ objections raised by them and shall withdraw the writ petition. 4. In view of the statement made by the learned Advocate appearing for the petitioners, even though the developer /intervenor was not a party to the writ petition, this Court in order to assist the petitioners and to put an end to their grievance allowed the petitioners to give notice to the developer to appear before this Court. Pursuant thereto, Mr. Anand Gupta, Executive Director of the Developer appeared before this Court and gave an undertaking to abide by the development agreement dated 2nd August 2003 in all respects and further undertook that the 3 individual agreements with the petitioners shall be executed by the developer within a period of one week from the date of the order i.e. 2rd March 2010 and that he shall have the same registered. 5. In view of the said statement, the learned Advocate appearing for the petitioners withdrew the writ petition and also sought time to vacate their respective premises within a period of four weeks after execution of the agreements. The writ petition was therefore, disposed of as withdrawn. 6. Mr. Dhakephalkar, the learned Senior Advocate appearing for the developer/intervenor submits that though the developer has prepared the individual agreements in identical terms with the agreement dated 2nd August 2003 which is annexure A-1 to the compilation of documents submitted by the petitioners themselves, the petitioners are not signing the agreement. He further submitted that 33 of the 45 occupants have already vacated their tenements in April 2009 and the present petitioners only with a view to harass the developer/intervenor at the instance of some interested party are not signing the agreement and nor are they vacating the premises despite the order of this Court dated 2nd March 2010. It is submitted that since the petitioners have withdrawn the writ petition, the eviction 4 order dated 31st October 2009 passed by the inquiry officer under the provisions of section 105B of the Mumbai Municipal Corporation Act against the petitioners automatically comes into force and that the petitioners can be made to vacate their respective premises and shift to transit camp constructed on the said premises. It is submitted on behalf of the developer/intervenor that the Municipal Corporation is hesitant in enforcing the eviction order passed by the inquiry officer under section 105B of the Mumbai Municipal Corporation Act, on the ground that the petitioners may allege that the Corporation is guilty of contempt of the order passed by this Court dated 2nd March 2010. 7. A copy of the present Notice of Motion was attempted to be served on the petitioners as well as their former Advocate. However, the petitioners refused to accept service. The Office of the Advocate for the petitioners also refused to accept service. Affidavits dated 5th May 2010 to this effect are filed on behalf of the developer/intervenor. However, the petitioners and/or their former Advocate did not remain present in Court on 5th May 2010. Since the developer/intervenor were only seeking a clarification in the matter, the Notice of Motion was made returnable on 7th May 2010. The developer/intervenor through 5 the Office of the Sheriff of Mumbai once again attempted to serve a copy of the Notice of Motion to the petitioners. Though the Notice of Motion was served on petitioner nos. 5, 10 and 11, the remaining petitioners could not be served as they had left their respective premises which were found to be locked. The same is set out in the report of the Office of the Sheriff. 8. As set out hereinabove, the Advocate for the petitioners had on instructions submitted before this Court that if the developer/intervenor agrees to abide by the agreement dated 2nd August 2003 which is annexure-A-1 to the compilation of the documents tendered by the petitioners themselves, the petitioners will not press any of the contentions/objections raised by them and shall withdraw the writ petition. Though the developer/intervenor was not a party to the writ petition at the instance of this Court, the developer/intervenor appeared before this Court and agreed to abide by the agreement dated 2nd August 2003, as sought by the petitioners. It now appears that the thirteen petitioners in order to cause harassment to the developer/intervenor and also to cause inconvenience to the 33 of the 45 occupants who have already vacated their tenements since April 2009, are not signing the Agreements though they have been asked to do so by the developer/intervenor to sign the 6 agreements which are identical in all respects to the agreement dated 2nd August 2003. 9. Under the circumstances, it is clarified that if the petitioners do not come forward to sign the agreements with the developer/intervenor as recorded in the order dated 5th May 2010, the Mumbai Municipal Corporation shall be at liberty to enforce the eviction order dated 31st October 2009 passed by the Inquiry Officer under section 105-B of the Mumbai Municipal Corporation Act. However, it is also clarified that if the petitioners come forward to comply with the order of this Court dated 5th May 2010, even after the eviction order is enforced, the developer/intervenor shall execute the agreements as per his undertaking recorded in the order dated 5th May 2010 and shall also provide transit accommodation to the petitioners on the said premises. 10. Notice of Motion is accordingly, disposed of. [ S.J.KATHAWALLA, J. ]