AGK 1 nma1634-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1634 OF 2010 IN APPEAL (L) NO.318 OF 2010 IN NOTICE OF MOTION NO.255 OF 2010 IN WRIT PETITION NO.396 OF 2010 Nitin Gopal Dhadve and others ..Appellant/ Petitioners. Versus Municipal Corporation for Greater Mumbai ..Respondent. And M/s.A.A. Estate Private Limited ..Intervenor No.1 And Sankalpsiddhi CHS Limited ..Intervenor No.2 Ms.Anjali R. Awasthi with Mr.Parvinder Singh Sethi for the appellants. Mr.J. Reis with Ms.T.H. Puranik for respondent No.1. Mr.P.K. Dhakephalkar, Senior Advocate with Mr.Tushar Gajjari i/by Ashwin Ankhad & Associate for Intervenor No.1. Mr.Bharat Choudhary with Mr.Diparshri Raopaul for Intervenor No.2. CORAM : J.P. Devadhar & R.V. More, JJ. DATE : 6 August 2010. AGK 2 nma1634-10 P.C. : 1. This notice of motion is taken out by the appellants seeking recall of the order passed in Appeal (L) No. 318 of 2010 in Notice of Motion No.255 of 2010 in Writ Petition No.396 of 2010 passed by a Division Bench consisting of Hon’ble Shri Justice F.I. Rebello & Hon’ble Shri Justice R.V. More on 14 June 2010. Since Rebello, J. is elevated as Chief Justice and has taken charge of the Allahabad High Court, as per the directions of the Hon’ble Chief Justice the matter is placed before us. 2. The appellants are tenants occupying their respective tenements in a Municipal Chawl situated at Worli. The tenants of the chawl including the Appellants had formed a Cooperative Society known as Sankalpsiddhi Cooperative Housing Society. The Society had entered into a development agreement with a Developer who is Intervenor No.1 herein on 2 August 2003 for development of the plot. As per the development agreement the Developer was to provide to each of the eligible member a tenement ad- measuring 565 square feet carpet area, as agreed in the Letter of Intent, which is Exhibit “F” to the agreement. In the said Exhibit “F”, it is stated that the area of 565 square area shall be inclusive of the built-in cupboard ad- measuring 70 square feet. 3. It appears that for some reason or the other, the actual AGK 3 nma1634-10 development did not take place. In the meantime, proceedings were initiated against the appellants for eviction and by an order dated 31 October 2009, the Inquiry Officer sought to evict the Appellants under Section 105-B of the Bombay Municipal Corporation Act. Challenging the said order, the Appellants filed an Appeal before the City Civil Court, which was dismissed on 10 February 2010. Challenging the aforesaid orders, the Appeallants filed Writ Petition No.396 of 2010, which was disposed of on 2 March 2010, wherein it was recorded that the Appellants would enter into an agreement within the time stipulated therein in terms of the agreement dated 2 August 2003 and that they shall vacate their tenements within four weeks from the date of executing the agreement. 4. Noticing that the area mentioned in the individual agreement furnished by the developer to the Appellants was not 565 square feet, it appears that the Appellants did not execute the agreement. Thereupon, the Developer moved an application before the learned Single Judge by filing Notice of Motion No.255 of 2010, which was disposed of on 7 May 2010, wherein it was recorded that the Petitioners (Appellants herein) have declined to accept service of the Notice of Motion and that if the Appellants do not come forward to sign the agreement with the Developer, the Corporation will be at liberty to enforce the eviction order dated 31 October 2009. Challenging the aforesaid order, the Appellants filed Appeal, which was disposed of on 14 June 2010, by recording that if the Appellants do not AGK 4 nma1634-10 sign the agreement with the Developer on or before 28 June 2010, the Corporation would be entitled to evict the Appellants. 5. The present Notice of Motion is taken out by the Appellants seeking recall of the order dated 14 June 2010 on the ground that the appeal was against the order of the learned Single Judge dated 7 May 2010 where as the impugned order refers to the order dated 2 March 2010 with which the Appellants have no grievance. It is contended that in the impugned order leave under Rule 147 is granted which rule has no relevance to the case of the Appellants. It is further contended that as per the development agreement dated 2 August 2003, the developer was to provide carpet area of 565 square feet where as in the draft agreement forwarded by the Developer, the area shown is 495 square feet carpet area + a flower bed and niche area of 70 square feet i.e. total 565 square feet. 6. From the impugned order, it is seen that though in para 2, there is a reference to the order dated 2 March 2010, the entire text of the order relates to the order dated 7 May 2010. Similarly, leave under Rule 147 is with reference to the Notice of Motion taken out by the Society which was also heard along with the appeal. 7. From the impugned order, it is seen that the Court noticing the controversy as to the area to be provided by the developer, got itself satisfied AGK 5 nma1634-10 that even according to the Society the area to be provided is 565 square feet (including 70 square feet built-in cupboard). The Court further recorded that 33 (ought to be 32) members have entered into agreement as per the development agreement dated 2 August 2003 for an area of 565 square feet inclusive of 70 square feet built-in cupboard. Accordingly, the Court gave further time to the Appellants to execute the agreement by 28 June 2010. 8. The grievance of the Appellants that they are entitled to 565 square feet carpet area has been negatived by the Court and the Appellants have been directed to execute the agreement, as done by other members, for an area of 565 square feet inclusive of 70 square feet built-in cupboard. Validity of that order challenged in the present Notice of Motion cannot be entertained as it amounts to reviewing the order dated 14 June 2010, which is not permissible in law. 9. In this view of the matter, we see no merit in the Notice of Motion and the same is dismissed with no order as to costs. 10. At this stage, learned Counsel for the Appellants seeks stay of this order. We see no reason to grant indulgence, because, as per the order dated 14 June 2010, the Appellants were to execute the agreement by 28 June 2010 and till date the Appellants have not executed and are not willing to execute the agreement. Moreover, all other members have vacated their AGK 6 nma1634-10 premises after executing the agreement with the developer and the project is held up because of the Appellants, thereby causing serious prejudice to the majority members of the Society. (R.V. More, J.) (J.P. Devadhar, J.)