:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 455 OF 2006 SUMMONS NO. 455 OF 2006 SUMMONS NO. 455 OF 2006 IN IN IN SUIT SUIT SUIT NO. 514 OF NO. 514 OF NO. 514 OF 1984 1984 1984 Aderbad Co-op. Hsg. Soc. Ltd. ... Plaintiffs. V/s. Dr. Aspi F. Golwalla & Ors. ... Defendants. And The Court Receiver, High Court, Bombay. ... Respondents. Mr. Guru S. i/b. Rita Bhatia for the Plaintiffs. Mr. Rajesh Shah i/b. Bilawala & Co. for Defendants 8 to 10. Ms. J. Sidhwa a/w. Ms. Jyoti i/b. Thakore Jariwala & Co. for Defendant No.12. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 04TH 04TH 04TH FEBRUARY 2009. FEBRUARY 2009. FEBRUARY 2009. P.C. P.C. P.C. : : : . This is a Chamber Summons seeking directions to the Court Receiver to file a Writ Petition challenging the order of the Heritage Committee, constituted under the Maharashtra Regional and Town Planning Act, 1966. 2. The Chamber Summons is moved by Defendant No.12. 3. Defendant No.12 is a firm carrying on business in advertising. Its sole proprietor has filed an affidavit in support claiming that in the above suit by an order passed by this Court, the Court Receiver, High Court, Bombay has been appointed as a Receiver of the suit property. However, in the suit property, there is a building. On the building there is a space which can be :2: used for putting up the Hoarding/Advertisement. The Plaintiffs had permitted Defendant No.12 to put such Hoarding/Advertisement but later on considering the dispute relating to property and appointment of Receiver, he had to move the Court and seek appropriate clarification in order to protect the Hoarding/Advertisement. After hearing parties, this Court has permitted the Hoarding/Advertisement to be continued by directing that the Court Receiver should appoint Defendant No.12 as his Agent in so far as the use of this space and re-erection of the Advertisement/Hoarding. 4. It is stated that all hoardings/advertisements which were put up on buildings and open space was subject matter of a prolonged litigation in a public interest litigation instituted in this Court. The Heritage Committee was directed to go into acts of various parties in putting up Hoardings/Advertisements in open spaces and on Heritage Buildings and Precincts and enquire as to whether the activity is prohibited or permissible. In other words, whether they are on Heritage buildings or in Heritage Precinct, etc. It is stated by Defendant No.12 that he appeared before the Heritage Committee and pointed out that such Advertisements/Hoardings cannot be held to be erected contrary to law and therefore, there was no reason for directing their removal. However, the Heritage Committee points out that it is bound by the Municipal Rules and Regulations and so also the legal provisions and :3: therefore, did not accept the request of Defendant No.12. Thus, the hoarding was directed to be removed. Challenging this decision of the Heritage Committee, a Writ Petition was instituted in this Court by the Petitioner being Writ Petition No.502 of 2006. That Writ Petition was disposed of on 9th March 2006 by a Division Bench of this Court. 5. The Petitioner challenged that order before Hon’ble Supreme Court and the Supreme Court has clarified that even if the real owner did not challenge the order passed by the Heritage Committee, the Court Receiver can challenge such an order. Reliance is placed by Ms. Sidhwa on the order of the Supreme Court and she contends that this order concludes the issue of locus-standi. In the light of the order of the Supreme Court, the Court Receiver can be directed to file the Writ Petition, more so, when Defendant No.12 is ready and willing to bear all expenses and charges so also costs of filing and prosecution of the Writ Petition. 6. The learned Counsel appearing for the Plaintiffs on the other hand have contended that the Co-operative Housing Society Limited namely, the Plaintiffs are claiming ownership rights in the property. There is a dispute going on in that behalf between the Plaintiffs and the other Defendants. The Court Receiver is appointed as Receiver of the property. The property consists of a :4: building. The building is used and occupied by the Members of the Plaintiff-Society. The Plaintiff-Society does not desire to challenge the order of the Heritage Committee. The Court Receiver is appointed in the Suit instituted by the Society and to preserve and protect the subject matter thereof. For proper administration and management of the property in dispute, the Court Receiver has been appointed. The property does not vest in the Court Receiver. The Court Receiver, therefore, cannot file any Writ Petition, more so, when the Agency Agreement with Defendant No.12 has come to an end. Defendant No.12 cannot be heard to say that Court Receiver must be directed to file any Writ Petition. It is contended that the order of the Supreme Court only permits the Court Receiver to file Writ Petition but there is no direction issued therein. The order must be understood as only granting liberty to the Receiver to file a Writ Petition. However, Receiver can do so only if the Plaintiffs and other parties seek any directions from the Court in that behalf. In any event, this is not an application of either the Plaintiffs or the Court Receiver. Moreover, there is no consent is granted or obtained of parties to the Suit. Defendant No.12, who was merely acting as an Agent of the Court Receiver cannot independently seek such leave or direction and that to in the Suit of the Plaintiff. If Defendant No.12 is aggrieved by the orders of the Heritage Committee and the action of the parties to the suit, his remedy is to file independent proceedings :5: and seek therein such reliefs as are permissible in law. The Chamber Summons is, therefore, misconceived and untenable. 7. The learned Advocate appearing for the Plaintiffs has reiterated this plea before me. 8. I have perused the Chamber Summons and the affidavit in reply so also the further affidavit of Defendant No.12. 9. The Hon’ble Supreme Court was considering the challenge to the order passed by the Division Bench in Defendant No.12’s Writ Petition. The Petitioner is admittedly an Agent of the Receiver. It is an admitted position that the Heritage Committee has rejected permission for putting up a hoarding on the suit building. The Division Bench has stated that the Petitioner can have no grievance and it is for the Receiver to take steps which in law he may be entitled. 10. While challenging this decision of the Supreme Court, Defendant No.12 relied upon the order of the Single Judge of this Court in Receiver’s Report No.48 of 2006 dated 14th July 2006. The Supreme Court has merely clarified the position that the Court Receiver can challenge the order of the Heritage Committee. As and when such a challenge can be raised by the Court Receiver, :6: his locus-standi cannot be questioned is the further clarification. There is no direction to the Court Receiver to file any Writ Petition. The Writ Petition which was earlier filed by Defendant No.12 has been specifically dismissed. The Division Bench also stated that it is for the Receiver to take steps in law to which he may be entitled. This order has been challenged in Appeal and the Appeal is allowed but the Hon’ble Supreme Court has observed that the Receiver can challenge the order passed by the Heritage Committee. It is no where stated that the Court Receiver is directed to challenge such an order or that the Petitioner can seek any relief much less a direction to the Receiver to challenge the order of the Heritage Committee. The Petitioner before the Supreme Court was Defendant No.12. 11. In my view, no reliance can be placed upon the order of the Supreme Court to seek the present direction. The Court Receiver has not been approached by any parties to the Suit other than Defendant No.12. The status of Defendant No.12 in this litigation is very clear. In the plaint itself it is stated that Defendant No.12 came to be impleaded subsequently because of the facts which have been pointed out to the Court. Defendant No.12 has claimed that an agreement with Defendant No.8 and/or Defendant Nos.9 and 10 permits him to put hoardings and advertisements on a portion of the northern wall of the suit property. These rights are denied by the Plaintiffs. :7: The dispute between the Plaintiffs and other Defendants including Defendant No.12 is yet to be decided. The Suit is filed by the Plaintiffs seeking a declaration that Clause 41 of the printed agreements for sale entered into between the individual members of the society and the 8th Defendant is void because that is in excess of the authority conferred upon Defendant Nos.8 by 1 to 7. The agreements between Defendant Nos.8,9 and 10 are void. The Plaintiffs are, therefore, entitled for conveyance of the building absolutely without any hindrance from Defendant Nos.8,9 and 10 or Defendant Nos.11 and 12. 12. The status and position of the Court Receiver in such proceedings and in law cannot be overlooked. The Receiver is appointed by the Court during the pendency of the Suit because it is just and convenient to do so and in the interest of justice. The subject matter of the suit is an immovable property. That such matter has to be protected, preserved so also administered and managed properly and effectively during the pendency of the Suit. For this purpose, the Court Receiver has been appointed. Merely because there is a hoarding/advertisement put up on one of the walls of the building by Defendant No.12 earlier and that was permitted to continue as Agent of the Court Receiver does not mean that Defendant No.12 can seek directions to the Court Receiver to file a Writ Petition to challenge an order passed by the Heritage Committee with regard to the hoarding/advertisement. The :8: proceedings between Defendant No.12 and the Heritage Committee are distinct and have no connection with the subject matter of the Suit. If Defendant No.12 is aggrieved by the orders of the Heritage Committee, it is not as if he is without any remedy. However, merely because the orders of the Heritage Committee cannot be challenged by him does not mean that the Court Receiver can be directed to challenge the same. That too by ignoring the status of the Court Receiver in the present proceedings. Further, the hoarding/advertisement can continue only if the Heritage Committee orders are set aside. That can be done by Defendant No.12 admittedly and he can seek appropriate orders and directions against all parties to this Suit and the Heritage Committee. At the instance of Defendant No.12 and when neither the Plaintiffs nor the other Defendants are agreeable to the Court Receiver challenging the order of the Heritage Committee, no relief can be granted in this Chamber Summons. The Chamber Summons is misconceived and is, therefore, liable to be dismissed. It is accordingly, dismissed. However, this order does not prevent Defendant No.12 from instituting independent proceedings and seeking appropriate declarations against the Plaintiffs and the other Defendants to the Suit so also the Heritage Committee and the Court Receiver. All pleas and contentions of all parties in such proceedings are kept open. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)