1 app504.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 504 OF 2010 IN NOTICE OF MOTION NO. 1424 OF 2010 IN SUIT NO. 3182 OF 2003 Gokuldas Ramraya Pai ....Appellant. Vs. Jaywant Ramchandra Keni & Ors. ....Respondents. AND The Mumbai Municipal Corporation of Greater Mumbai. ....Respondents. Mr. A.Y. Sakhare, Sr. Advocate with Mr. D.A. Barot for the Appellant. Mr. D.H. Mehta i/by M/s. Shroff & Co. for Respondent Nos. 1 to 3. CORAM : DR. D.Y. CHANDRACHUD AND ANOOP V. MOHTA, JJ. DATE : NOVEMBER 29, 2010 P.C.: This Appeal arises out of an order of a learned Single Judge on a Motion for interim relief, dated 9 June, 2010. The Defendant is carrying on construction on Plot No. 399, Original Plot No. 276, TPS- III Scheme, Borivali (W), Mumbai. The dispute relates to the FSI in 2 app504.10.sxw ssm respect of the set-back area of the development plan road. Initially, an order was passed by a learned Single Judge of this Court on 16 October 2003. The relevant part of the order reads as follows: “(i) If the defendants apply to the Bombay Municipal Corporation for removal of the area of FSI 571.48 sq. meters of the development plan road out of the original Plot No. 276 from the building plan as approved and on the Municipal Corporation granting the said permission and on the defendant No.1 thereafter purchasing TDR and using the same on final plot No.399 and filing an undertaking to this Court with notice to the Counsel for the plaintiff and after a period of 15 days, it will be open to the defendants to carry on construction and the injunction then shall stand vacated.” Clause (i), was modified by an order dated 15 February 2006 which reads as follows:- “(i) The learned counsel appearing for the defendants states that in terms of para 7(i) of the order dated 16.10.2003, the defendants have complied with the conditions by obtaining T.D.R. And they will not utilize the F.S.I. of 571.48 sq. mtrs., but construct only on the basis of the T.D.R. purchased by them. In the light of the aforesaid, the defendants will be at liberty to carry out further constructions, subject to the conditions which are mentioned in para 7(i) of the said order.” 3 app504.10.sxw ssm 2 The impugned order of the learned Single Judge dated 9 June 2010 clarifies that the TDR/FSI which will be permitted to the Defendants will be only what is purchased from the open market and no part of it will be treated as relateable to the area of the disputed road. Moreover, the learned Judge recorded that if the Plaintiff succeeds in the suit, he would be entitled to claim the benefits of the road FSI which the Defendant shall not be entitled to claim. 3 The contention of the Appellant is that the Respondent is now utilizing additional TDR to construct the Sixth and the Seventh floors and as a result, there is a breach of the order dated 16 October 2003. On the other hand, it has been urged on behalf of the Respondent that the Respondent has not used any part of the Road FSI and the entire TDR was purchased from the open market. Moreover, it was urged that the operative direction in paragraph (iii) of the impugned order was passed by consent and hence, an Appeal would not be maintainable. Having heard the counsel, we find that the impugned order does not call for interference, since the directions are consistent with the previous orders that the Defendant shall not utilize any part of the road FSI/ TDR and that the Defendant would only be entitled to utilize FSI purchased from the open market. Moreover, there is an 4 app504.10.sxw ssm agreement recorded by the learned Judge that if the Plaintiff succeeds in the Suit, he would be entitled to claim the benefit of the road FSI. 4 In view of what is stated above, we do not find any infirmity in the impugned order. The Appeal is dismissed. No costs. (ANOOP V. MOHTA, J.) (DR. D.Y. CHANDRACHUD, J.)