SRJ IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) N0.318 OF 2010 IN NOTICE OF MOTION NO.255 OF 2010 IN WRIT PETITION NO.396 OF 2010 Mr. Nitin G. Dhadve & Others .. Appellants V/s. Municipal Corporation for Greater Mumbai .. Respondent And M/s. A.A.Estate Pvt. Ltd. .. Intervener No.1. And Sankalpsiddhi CHS Ltd. .. Intervener No.2. Mr. Parvinder Singh Sethi, for Appellants. Mr. J.Reis with Mrs. Shobha Ajitkumar, for Respondent. Mr. P.K.Dhakephalkar, Sr.Advocate with Tushar P. Gujjar i/b. Ashwin Ankhad & Associates, for Intervener No.1. Mr. Bharat Chaudhari i/b. Dipashu Raorane, for Intervener No.2. CORAM : F.I. REBELLO & R.V. MORE, JJ. DATED : JUNE 14, 2010 SRJ P. C.: 1. Leave under Rule 147 of the High Court Original Side Rules, granted. Society-Intervener No.2 to take out the Notice of Motion as per draft handed in. Notice of Motion made returnable forthwith. 2. This is a Letter's Patent Appeal against order dated 2nd March, 2010 passed in Writ Petition No.396 of 2010. The present appellants were the Petitioners. In the Petition, they challenged the orders passed by the City Civil Court dated 10th February, 2010, whereunder, the appeals filed by the Petitioner impugning the orders passed by the Enquiry Officer of the Respondent – Corporation under section 105-B of the Mumbai Municipal Corporation Act, dated 31st October, 2009 was dismissed. Consequent to that order, the Appellants/Petitioners herein could be evicted from the premises of the Respondent Corporation. 3. The Learned Single Judge, however, considering the equity of the matter, and as the Petitioners who were residing in the premises are entitled to be rehabilitated, issued notice to be served on the developer to give an undertaking that developer shall abide by the development agreement dated 2nd August, 2003 which is annexed to the compilation of documents. The Learned Single Judge accepted the said undertaking. Liberty was given to the Appellants herein to withdraw the Petition and they sought four weeks time to vacate the premises after execution of the agreement. The Petition was, therefore, disposed off as withdrawn. SRJ 4. Though the Petitions were withdrawn, the Appellants , however, did not in terms of the order vacate the premises, Notice of Motion was taken out by the intervener developer, being Notice of Motion No.255 of 2010. In the motion, clarification was sought that the Respondents Corporation is entitled to enforce the order passed by the Enquiry Officer under section 105-B of the Mumbai Municipal Corporation Act dated 31st October, 2009 against the Appellant to forthwith direct the Appellant to vacate their respective premises and shift to transit accommodation on the same property. After hearing the parties, the Learned Single Judge noted the contention advanced by the parties and after considering various aspects was pleased to observe that if the Appellants do not come forward to sign the agreement as recorded in the order dated 5th May, 2010, Corporation will be at liberty to enforce the order dated 31st October, 2009 passed by the Enquiry Officer under section 105-B of the Mumbai Municipal Corporation Act. However, if they comply with the order, they will be entitled to transit accommodation. 5. The Appellants by this Appeal seek to raise the question that the original agreement that was signed between the developer and the society what was provided for under clause 9(a) was 565 sq. ft. carpet area and that draft agreement given to them, what was to be given was 525.39 sq. ft. carpet with 70 sq. ft. of built-up cupboard . In the original agreement itself, reference is made to annexure F. We adjourned the matter to enable the developer to provide the original agreement signed with the society. The SRJ same has been produced before the Court. 6. The society has also taken out Notice of Motion for intervention which we have allowed by a separate order. The society in the Affidavit has clearly set out that in the General Body Meeting which took place, the agreement alongwith plan was shown to the members. At this meeting, 11 out of 12 appellants were present. It is further reitreated that development agreement which was signed between developer and society what was provided under clause 9(a) was 565 sq. ft. carpet area and that in terms of agreement signed what was to be given to the member was 495 sq. ft. with 70 sq. ft. of built-up cupboard. 33 out of 45 members of the society have signed the original agreement. Once that be the case, the contention raised on behalf of the Appellants to our mind is nothing but an attempt to defeat the order passed by this Court. 7 . We had asked the learned counsel for the Appellants, whether the Appellants are willing to enter into the same agreement which other 33 members have agreed. The learned counsel states that he has no instructions. 8. In our opinion, if these Appellants do not sign, the agreement which have been signed by the other members on or before 28th June, 2010 , the undertaking given by the developer would not be binding and the Corporation would be entitled to take steps to evict the Appellants if the agreement is signed, the developer would be bound by the undertaking recorded by the learned Single Judge. SRJ 9. With the above observations, Appeal is disposed of. 10. In view of the disposal of the Appeal, Notice of Motion is also disposed of. (R.V. MORE,J.) (F.I. REBELLO,J.)