1 904 ao.1265.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1265 OF 2010 Rizvi Builders. ... Appellant Vs. Bilal Ahmed Abdul Gafoor. ... Respondent ----- Mr. D.Singh with Mr.Parag Sharma i/b Ravi Thaankian for the Appellant. Mr. Ram U. Singh for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 08 th April, 2011. ORAL JUDGMENT: 1 This appeal was lastly on board on 29 th March, 2011, which was adjourned to 5 th April, 2011 for passing order. The appeal was repeatedly adjourned as there was possibility that the parties may come out with settlement. Taken up for final disposal. 2 The challenge in this appeal by the original defendant is to the order dated 12 th August, 2010 passed by the trial Court on a notice of motion take out by the Respondent – original plaintiff. The operative part 2 904 ao.1265.10 of the said order reads thus: “ ORDER Notice of motion No.3176 of 2007 taken out by the plaintiff is made absolute in terms of prayer clauses (c) of the notice of motion. Defendant is directed to construct a structure on the old premises. The nature and area of structure shall be same as it was earlier. Defendant shall give the possession of such a structure to the plaintiff within a period of 6 months from today, failing which the plaintiff will be entitled to reconstruct the premises at his own costs which shall be recovered from the defendant.” 3 The suit is filed by the Respondent – plaintiff for a direction to the Appellant to comply with statutory obligations under the Maharashtra Ownership Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as “the said Act of 1963”). The case made out by the Respondent in the plaint is that the Appellant is carrying on business of Builder and Developer and the Respondent was running a business of Interior Decorators in a structure on Plot No.G-46, C.T.S. No.G/623, Kadamba Society, Santacruz (West) Bombay 400 054. The said structure is hereinafter referred to as the suit structure. 3 904 ao.1265.10 4 It is stated that the Appellant had taken over the said property for development and accordingly an agreement was entered into on 15 th May, 1987 between the Appellant and the Respondent. As per the terms of the agreement, the Respondent – plaintiff was shifted from the suit structure and the same was demolished for the purpose of development. The agreement provided that permanent accommodation will be allotted to the Respondent after development was carried out. It is stated that the Respondent was allotted a garage by the Appellant on temporary basis from where he was permitted to carry on business. 5 It is stated that from the year 1987, no work of development was carried out by the Appellant. It is stated that the Respondent was forced to carry on commercial activity from a garage. Therefore, a prayer was made in the suit for enforcing the obligations of the Appellant under the said Act of 1963 for providing permanent accommodation admeasuring 180 square feet as per the agreement dated 15 th May, 1987. In the alternative, a prayer was made that the Respondent be provided alternate accommodation admeasuring 180 square feet on ownership 4 904 ao.1265.10 basis. Another prayer made in the alternative was for a decree directing the Appellant to put up a structure on the place where original suit structure of the Respondent was situated. In the said suit, notice of motion for interim relief was taken out. A reply was filed by the Appellant contending that provisions of the said Act of 1963 were not applicable to the transaction. In the reply, the execution of the agreement dated 15 th May, 1987 was not disputed. In paragraph No.11 of the reply, the Appellant stated thus: “11. With reference to para 7 of the Plaint, I submit that as per the Agreement dated 15 th May, 1987 and the letters dated 15 th May, 1987 and 22 nd April, 1988 annexed to the Plaint at Exhibit 'C' and as per the mutual understanding between the Plaintiff and Defendants it was specifically agreed between the Plaintiff and Defendants that the possession of the permanent alternate accommodation will be given to the Plaintiff as soon as the said premises are ready for possession and the Plaintiff will simultaneously vacate his temporary accommodation in Sea Gull Apartment.” 6 In the reply, various difficulties have been set out in the way of development of the property in question. It is contended that as a result of objections raised by some of the occupants, the development 5 904 ao.1265.10 could not commence. It is contended that for 20 years, the Respondent did not make any grievance about the occupation of temporary accommodation. 7 The learned counsel appearing for the Appellant submitted that such a drastic relief could not have been granted by way of interim relief. He submitted that grant of such relief is completely inconsistent with the prayer made in the suit filed by the Respondent, which is for enforcing obligations under the provisions of the said Act of 1963. The submission of the learned counsel appearing for the Appellant is that if the construction is allowed to be carried out, it will prevent the development of the property by the Appellant and by an interim order, such obstruction cannot be created in the way of development. It is submitted that as the provisions of the said Act of 1963 are not applicable, such a relief could not have been granted by the trial Court at this stage. The learned counsel appearing for the Respondent supported the impugned judgment and order and submitted that there is no reason to disturb the equitable relief granted by the trial Court. It must be stated 6 904 ao.1265.10 here that the learned counsel appearing for the Appellant stated that if the Appellant is able to start the development work, time of about 15 months will be required for providing permanent accommodation to the Respondent in the developed property in terms of the Agreement dated 15 th May, 1987. 8 I have given careful consideration to the submissions. It it not in dispute that on the basis of agreement dated 15 th May, 1987, the Appellant – Builder obtained possession of the suit structure wherein the Respondent was carrying on business and that the Respondent was given a temporary accommodation to carry on the business. The temporary accommodation is in the form of a garage. It is not in dispute that from the year 1987, the Appellant is not able to develop the property in which the suit structure of the Respondent was situated. As a result, the Respondent continues to occupy temporary accommodation, which is a garage. Looking to the stand taken in the reply to the notice of motion, there is no possibility that in near future, the Appellant will be able to comply with the agreement dated 15 th May, 1987. Thus in the year 1987, 7 904 ao.1265.10 the suit structure was demolished by the Appellant on the basis of an Agreement to provide a permanent accommodation in developed property. Till today, the Respondent is forced to carry on his business in a garage. 9 The result of inaction on the part of the Appellant is that from the year 1987 onwards, the Respondent has remained away from his original structure and that is the reason why an equitable relief of temporary injunction has been granted by the trial Court by which the Appellant has been directed to construct a structure at a place where the suit structure existed. The Court has directed that in the event, structure is not constructed within a period of six months by the Appellant – defendant, the Respondent will be entitled to reconstruct the structure at his own costs. 10 It is obvious that construction of the structure in the terms of the impugned order will be subject to final outcome of the suit. In the event, the Appellant is in position to start development of the property, 8 904 ao.1265.10 the Appellant can always apply to the trial Court under Rule 4 of Order XXXIX of the Code of Civil Procedure, 1908 for removal of the structure erected in terms of the impugned order on giving temporary accommodation to the Respondent to enable the Appellant to develop the property. As of today, there is no possibility that the property will be developed and therefore, the trial Court has passed an equitable order directing the Appellant to reconstruct the suit structure, which was demolished under the agreement of the year 1987 by the Appellant with an assurance to the defendant to give permanent accommodation in the developed property. That assurance has not been fulfilled for last more than twenty three years. As the Appellant is not developing the property, there will not be any prejudice to the Appellant if the structure is re- erected. It is obvious that after the erection of the structure in terms of the impugned order, at the time of handing over possession thereof to the Respondent, he will have to handover the possession of the garage given to him by way of temporary accommodation. The time fixed under the impugned order to re-erect the structure will have to be extended for a reasonable period. 9 904 ao.1265.10 11 Hence, the appeal from order is disposed of by passing the following order: i. The impugned order is confirmed subject to following modification ; a) The time granted under the impugned order to the Appellant to re-erect the original structure of the Respondent is extended by a period of three months from today ; b) If the Appellant completes the construction of the structure within the stipulated time, the Respondent will be placed in possession of the said structure subject to final outcome of the suit provided the Respondent hands over possession of the garage presently occupied by him ; c) In the event, the Appellant fails to re-erect the structure within the stipulated time, it will be open for the Respondent to re-erect the structure at his own cost ; d) After re-erecting the structure, before occupying the same, the Respondent will have to handover possession of the garage held by 10 904 ao.1265.10 him to the Appellant ; e) The re-erection of the original structure and occupation thereof by the Respondent will be subject to final outcome of the suit and no equity will be created in favour of the Respondent ; f) In the event Appellant desires to develop the property, after obtaining building permission, it will be open for the Appellant to apply to the trial Court under Rule 4 of Order XXXIX of the Code of Civil Procedure, 1908 for modification of the impugned order. The trial Court will consider the said prayer on its own merits in the light of the observations made in the Judgment ; ii. There will be no order as to costs ; iii. Civil Application No. 1563 of 2010 does not survive and the same is disposed of. [ A.S.OKA, J ]