[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT WRIT WRIT PETITION NO. 2749 OF 2008 PETITION NO. 2749 OF 2008 PETITION NO. 2749 OF 2008 Date of Decision : April 22, 2008 For Approval and Signature : The Honourable Mr. Justice A.A.Sayed : 1. Whether Reporters of Local Papers may be allowed to see the Judgment? 2. To be referred to the Reporters or not? 3. Whether Their Lordships wish to see the fair copy of the Judgment? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any Order made thereunder? 5. Whether it is to be circulated to the Civil Judges ? 6. Whether the case involves an important question of law and whether a copy of the Judgment should be sent to Nagpur, Goa and Aurangabad office? ***** [2] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.2749 OF 2008 MRS. KETI F. MEHTA ... PETITIONER. VS. EWART INVESTMENTS LTD. ... RESPONDENTS. MR.VIRAG TULZAPURKAR SR.COUNSEL I/B. M/S. KANGA & CO. FOR THE PETITIONER. MR. I.M. CHAGLA SR.COUNSEL, MR. D.D.MADON SR.COUNSEL, MR. D.K.MEHTA AND MR. RAHUL DWARKADAS I/B. WADIA GANDHY AND CO. FOR RESPONDENTS. CORAM CORAM CORAM : A.A.SAYED, J. : A.A.SAYED, J. : A.A.SAYED, J. DATE DATE DATE : April 22, 2008. : April 22, 2008. : April 22, 2008. P.C. 1. Heard. Rule. By consent rule made returnable forthwith and heard finally. 2. This writ petition impugns the order dated 15th March, 2008, passed by the Appellate Court of Small Causes Court at Bombay, whereby the appeal of the respondents challenging an interlocutory order of the Trial Court was allowed and the order of the Trial Court was set aside. 3. The appeal arose from the order of the Trial Court on an interim application filed by the petitioner wherein the Trial Court granted temporary injunction restraining the respondents from [3] demolishing the rooms in question till further orders and directed the parties to make safety arrangements in the suit building to enable the Court Commissioner to take measurement of the premises in question in terms of clause (bb) of the interim application and the respondents were further directed to produce sanctioned plans and relevant documents of the said premises and supply copies thereof to the petitioner. 4. The petitioner is the plaintiff in the suit being R.A.D. Suit No. 8 of 2008 wherein she has prayed for a declaration that she is a tenant in respect of two rooms being room No. 1 and 3, used as servant quarters on the third floor of the building known as ‘Cabins’. Reliefs in the suit were also sought to the effect that the petitioner was entitled to the use toilet and bath room as also two terrace and the use of common areas and staircases for ingress and egress. 5. The respondents are the defendants in the suit and are the owners of the suit property. The respondents have resisted the claim of the petitioner inter alia on the ground that as the said rooms were subject matter of consent terms which have been filed between parties in writ petition No. 722 of 2005, no reliefs can be sought in respect of the said rooms unless the Consent Terms are set aside. The main [4] controversy however, between the parties relates to the "area" of the two rooms to be given to the petitioner by the respondents in the proposed new building as agreed to in the said Consent Terms. 6. The above referred Writ Petition No. 722 of 2005 was filed by the respondents against the State of Maharashtra and four others, wherein the present petitioner was arrayed as respondent No.5. The challenge in the said writ petition was to the legality of the notice dated 17.11.2004, issued by MHADA, wherein the occupants of the suit building were directed to vacate the premises in their occupation on account of the dilapidated condition of the suit building. The said writ petition came to be disposed by filing of the consent terms dated 5.5.2005 referred to above. Under these consent terms, the respondents agreed and undertook to provide temporary alternative accommodation to the petitioner during the period of construction of the new building, which was to be constructed within 60 months from the date of the Consent Terms. It was also undertaken in the consent terms that the respondents would construct new building as per the building plan and that two rooms would be provided to the petitioner in terms of clause 2 of the consent terms. [5] 7. Before the trial Court, on an interim application of the petitioner, an ex parte ad-interim order came to be passed and Court Commissioner was appointed and status quo was directed to be maintained. However, the task of the commission, which was primarily to take measurements of the said rooms and surrounding areas could not be completed in view of the dangerous condition of the suit building. The said interim application then came to be decided finally and the trial Court was pleased to allow the application of the petitioner and the respondents were restrained from demolishing the said rooms. By the said order, the petitioner and the respondents were directed to make safety arrangements to enable the Commissioner to take measurements of the said rooms and to file his report. The Trial Court further directed that the sanctioned plans and the relevant documents of the said premises be supplied to the petitioner. This order of the Trial Court was challenged by the respondents before the Appellate Court, which was pleased to set aside the same and allow the Appeal, which has resulted in filing of the present writ petition. 8. The learned Sr. Counsel for the petitioner invited my attention to the consent terms annexed to the petition as Exhibit "C" as also the correspondence between the parties. He has also [6] pointed out the ex parte ad-interim order dated 3rd January, 2008 whereby the Trial Court had appointed the Court Commissioner for measurement of the said premises and further Ordered parties to maintain status quo. The learned Sr.Counsel for the petitioner also took me to the provisions of Section 16 (1) of the Maharashtra Rent Control Act, 1999 and submitted that notwithstanding the Consent Terms, the petitioners are entitled to file the suit and seek reliefs. The learned Counsel submitted that the petitioner was entitled to the areas which were in occupation and use by her servants through her and such claim was maintainable dehors the Consent Terms. He further contended that the petitioner is to be provided 787.28 sq.ft. area of room No. 1 and 361.78 sq.ft. area of room No. 3, aggregating to 1149.06 sq.ft. area in the proposed new building and that under the consent terms the respondents were bound to give ‘identical’ area to the petitioner. The learned Sr. Counsel submitted that since the respondents started demolition of the suit building and there was a dispute regarding the area of the two rooms, it was necessary to take measurement of the said premises before demolition and accordingly the suit and the interim application came to be filed before the Small Causes Court. The learned Sr. Counsel for the petitioner invited my attention to the prayers in the application for interim relief [7] which essentially was for appointment of Court Commissioner to take measurement of the said premises and for a restraint order from demolishing the said premises and to disclose the sanctioned plan of reconstructed building and to identify two rooms agreed to be provided by the respondents to the petitioner. 9. The learned Sr.Counsel for the petitioner sought to argue that the initial plans which were submitted did not provide for the two rooms which were to be handed over to the petitioner after construction of the new building. The learned Sr. Counsel submitted that as recorded in the Consent Terms, the respondents agreed to provide two rooms on terms ‘similar’ to the present, which included the use of toilet, bathroom, two terraces and the right to use of common area and staircases for the purpose of access including ingress and egress to the two rooms, toilet, bathroom and two terraces. He submitted that since there is a dispute regarding area of the two rooms, it is essential that the Court Commissioner should measure the said rooms and surrounding areas so that the petitioner is provided with equivalent area in the newly constructed building. The learned Sr. Counsel for the petitioner has also sought to rely upon copy of the notice dated 20th February,2008, issued by the [8] Municipal Corporation to the respondents, handed across the bar, which refers to obtaining of IOD/ CC in respect of the the building by the respondents and to stop work of demolition in progress. The learned Sr. Counsel contended that the respondents have not obtained the requisite permission from the local authority, the Heritage Committee and CRZ authorities for demolition and construction of the suit building. He, therefore urged that the impugned Order of the appellate Court is required to be set aside and the Order of the Trial Court to be restored. 10. The learned Sr. Counsel for the respondents, on the other hand, supported the impugned order and submitted that under the consent terms dated 5.5.2005 arrived at between the parties, undertakings were given by the respondents to provide to the petitioner two rooms of equivalent area as servants quarters and the respondents would abide by the consent terms and accordingly the two rooms would be handed over to the petitioner in the reconstructed building after 60 months from the date of the consent terms i.e. 60 months from 5.5.2005. 11. The learned Sr. Counsel further submitted that under the consent terms the respondents have undertaken to put up reconstructed building in place of the structure known as ‘Cabins’ in accordance with [9] the building plans. The learned Sr. Counsel submitted that in so far as the measurements of the two rooms are concerned, there is essentially no dispute and that the petitioner has wrongly calculated the area of the two rooms in terms of super built up area by taking into account the two terraces area, staircases and other common areas instead of built up or carpet area of the two rooms. 12. The learned Sr. Counsel for the respondents further submitted that once the consent terms are on record, the petitioner is required to file proceedings to set aside the Consent Terms and it would not be open for the the petitioner to approach Small Causes Court for the reliefs prayed in the suit, particularly, when the Small Causes Court was subordinate to the High Court, which is a higher forum and that the consent terms which are recorded in the Order of the High Court would operate as res-judicata as well as estoppel and that in effect, the petitioner is seeking to vary / alter the Consent Terms. The learned Senior Counsel submitted that the Consent Terms have taken the form of an order of this Court under which the respondents are to provide two rooms to the petitioner in the proposed building within 60 months from 5.5.2005 and any stay to the demolition or construction would tantamount to varing the consent terms and the respondents would then not [10] be able to fulfil its obligation of providing the two rooms in the proposed building to the petitioner within the stipulated period. The learned Sr. Counsel also pointed out that the impugned Order also referred to latest revised plan which makes provisions for the servants’ quarters together with toilet and bath room. The learned Sr. Counsel for the respondents submitted that no purpose would be served in appointing Commissioner and staying the demolition and that the application of the petitioner was not bona fide. 13. Having heard the rival contentions of the parties and after perusing the material on record, I find that the main anxiety of the petitioner was that she would be deprived of even the two rooms as agreed in the consent terms. The same is quite evident from the averments in para 14 of the Plaint, wherein the petitioner has averred thus - "... the defendants were thus aware of their liability to provide two new rooms in the reconstructed building. However, on going through the said plans, it is noted that, inspite of being aware of the said liability, the defendants have nowhere made any provision for the two new rooms in the reconstructed building let alone provisions [11] for use of a toilet (in lieu of the said toilet) for use of a bathroom (in lieu of bathroom), for use of terraces (in lieu of the terraces) etc. Simply put, the defendants have knocked off the new rooms from the building plans of the proposed re-constructed building and thereby, the Plaintiff will stand deprived of two rooms in the re-constructed premises." 14. Much has been made out about the measurements of the two rooms and the surrounding area. Curiously, acopy of the plaint is not annexed to the petition. In the plaint, the use of the words "suit premises" is avoided. In the Writ Petition, however, the two rooms are described as ’the said premises’ and user of the other surrounding portions are described as as ’facilities’. From a bare reading of a copy of the plaint handed in, and in particular Exhibit"B", which is a plan, I find that the measurements of the two rooms and surrounding areas are already on record. Though there may be some marginal difference in these measurements and the measurements of the Respondents, these measurements have been substantially accepted by the Respondents. To my mind the dispute is not about the measurements as such, but the entitlement of the petitioner to super built-up area in respect of the two rooms [12] vis-a-vis the carpet/ built-up area of the two rooms. The consent terms do not mention the measurements or area of the two rooms. However, the consent terms do speak of ‘equivalent’ area. In these circumstances, petitioner’s claim to any additional or appurtenant area which are not demised, on the basis of super built up area, particularly when the rooms are tenanted premises, is curious and questionable. Admittedly the possession of the two rooms were obtained by the Respondents from the petitioner on 22.6.2005. However, the suit is filed in 2008. In my view, the application of the petitioner for measurement of the two rooms and the surrounding area and for stay to the demolition of the said premises by the respondent is not bonafide and prima facie an attempt to extract additional area than what the petitioner is legally entitled under the Consent Terms. 15. In my view the respondents are bound by the Consent Terms and if at all they are not able to complete the construction and hand over the two rooms in the reconstructed building, within the agreed period, the consequences would follow and the petitioner would always be at liberty to file appropriate proceedings against the respondents to ensure compliances in terms of their undertakings as provided in the consent terms. As the present [13] petition arises from interlocutory proceedings, at this stage, I do not deem it appropriate to deal with all other contentions raised before me. 16. I have perused the impugned order and I am in agreement with the findings of lower Appellate Court and I see no reason to differ. There is no error, illegality or infirmity in the impugned order for this Court to interfere in its writ jurisdiction under Article 227 of the Constitution of India. However, I deem it fit to direct that in the event there is any change in the ’latest revised plan’, as referred to in paragraph No. 34 of the impugned Order, the respondents would furnish a copy of the said plan to the petitioner, identifying therein the rooms to be handed over to her. 17. It is made clear that since this order arises from interim proceedings, the observations herein are only prima facie and would not come in the way of the petitioner in her suit which is pending in the Small Causes Court and the said suit would be decided on its own merits without being influenced by the observations in this order. 18. In the result the writ petition is dismissed with no order as to costs. Rule stands discharged. [14] 19. The learned Counsel for the petitioner seeks stay of this order for a period of four weeks. The learned Counsel for the respondents, on the other hand, opposes the same. In my view, this is not a fit case for stay in as much as no purpose would be served in staying the demolition of the partly demolished building for the purposes of securing measurements, when the measurements of the two rooms as well as that of the toilets, bath room, terraces, stair case and corridor are already on record and substantially accepted by the Respondents. The application for stay is rejected. .... [A.A.SAYED, [A.A.SAYED, [A.A.SAYED, J.] J.] J.]