-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1291 OF 2006 Joaquim Ephraim Rodrigues and another .....Petitioners vs. The Bombay Municipal Corporation and others ...Respondents Mr. Joaquim Reis, instructed by Mr. Abhay Patki, for the petitioners. Mr. Archana Joshi for respondent No.1. Mr. Sean Wassoodev for respondent No.2. Mr. Santosh Shetty for respondent no.3. Mr. A.G. Damle for respondent No.4. Mr. M.D. Naik, AGP, present. CORAM: P.B. MAJMUDAR & A.A. SAYED, JJ. DATE: SEPTEMBER 17, 2008. P.C. This petition is filed by the occupiers of flat Nos. 11 and 14 of Alexander Heights, St. Anthony Road, Mumbai-400 071 with a grievance that even though they are occupiers of the respective flats in question since long, the developer has not formed the Co-operative Society though the developer is under statutory obligation to form such society within a stipulated period of four months as per the scheme. 2. At the time of purchase of the flats, the petitioners were shown the building plans and some agreements which were entered into between the developer and the petitioners showing the plans, total area and the FSI -2- availed of. It seems, subsequently under the Rules, additional FSI was made available and at that time a dispute arose between the petitioners on one hand and respondent No.4 on the other, who is the original lessee. The respondent No.4 was given leasehold rights for a period of 99 years with a right to construct flats and give it on sale. According to the petitioners, once the scheme is complete, no additional FSI can be available to respondent No.4 but the same should be available only to the petitioners and such occupants who can be said to be the members of deemed Co-operative Housing Society which should have been formed on completion of the scheme within four months and to be followed by conveyance deed within four months thereafter. The grievance of the petitioners is that the Municipal Corporation could not have sanctioned the plan in favour of respondent No.4 by allowing him to construct additional construction on a plot which is kept for recreation ground under the scheme and as per the original plan submitted at that time. The grievance of the petitioners is that once the scheme is over, neither the developer nor respondent No.4 has got any right regarding additional FSI in any manner especially when plot holders have not given any consent in this behalf. 3. So far as prayer regarding forming Co-operative Society is concerned, the learned counsel appearing of respondent No.2, who is the original developer, states that such society will be formed immediately and as early as possible and preferably within one month from today. Learned -3- counsel for respondent No.4 submitted that no direction can be given against respondent No.4 in this behalf as the respondent No.4 is not a “State” within Article 12 of the Constitution of India and, therefore, prayer in this behalf is not entertainable in a writ petition as the petitioners are required to file civil suit in this behalf. However, on behalf of respondent No.4 it is submitted that respondent No.4 has already formed a society which fact is disputed by the learned counsel for the petitioners. 4. During the course of hearing, Mr. Reis, learned counsel for the petitioner submitted that against the decision of the Municipal Corporation in sanctioning the plan in favour of respondent No.4 in connection with additional FSI is concerned, the petitioners would like to make an appropriate representation/application to the Principal Secretary, Urban Development Department, Mantralaya, Mumbai, pointing out all the factual aspects in detail. He submitted that such representation would be made within a period of one week from today. Considering the said aspect, so far as the prayer of the petitioners regarding forming of co-operative society is concerned, this Court at this stage is not issuing any direction. However, statement of learned counsel appearing for respondent No.2 is recorded that respondent No.2 is going to form the society preferably within a period of one month from today. The statement of the learned counsel is accordingly recorded. Regarding prayer of petitioners for making representation to the Principal Secretary, Urban Development Department is concerned, the -4- petitioner is permitted to make such representation giving all details about the matter and if any representation is made by the petitioners, the Principal Secretary, Urban Development Department may consider such representation after hearing the petitioners and other concerned parties and take appropriate decision within a period of two months from the date of receipt of such representation. The learned Assistant Government Pleader who is present in Court submits that he will convey this order to the Principal Secretary concerned in this behalf. The concerned Principal Secretary may accordingly decide the representation of the petitioners in accordance with law and before taking any decision, orders of this Court and the Supreme Court on the subject matter may also be taken into consideration and appropriate decision may be taken in connection with the plan approved by the Municipal Corporation in favour of respondent No.4 for making construction on the additional FSI. The aspect whether the additional FSI should go to the petitioners and plot holders and to other flat purchasers or to respondent No.4 may be decided by the Secretary in accordance with law. Till the decision is taken, status quo prevailing as on today be maintained by all the parties. If the ultimate decision of the Principal Secretary is against any of the parties, it will be open to such parties to take further recourse in accordance with law. This order is passed in view of the consensus prevailing between the parties to this lis. Subject to what is stated above, the writ petition is disposed of. Parties to abide by the statement recorded above. -5- P. B. MAJMUDAR, J. A.A. SAYED, J.