NMS1947-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1947 OF 2009 IN SUIT NO.1373 OF 2009 Zarir Phiroze Khariwala .. Plaintiff Versus Municipal Corporation of Gr.Mumbai and Ors. .. Defendants Mr.Shiraz Rustomjee, Ms.Prembhari Thakkar, Rahul P. Jain, Mr.Parag Sawant i/b. Res Legal for plaintiff Mr.N.V.Walawalkar, Senior Advocate with Mr.R.Y.Sirsikar for defendant Nos. 1 to 3 Mr.Sanjay Jain i/b. L.D.Shah & Co. for defendant No.4. CORAM : S.C.DHARMADHIKARI, J. DATE : 2nd December 2010. P.C.: 1] The plaintiff has filed this suit for relief of specific performance of an agreement for lease stated to have been executed by first defendant Corporation in favour of his predecessor in title. 2] On the own showing of the plaintiff, the uncle and predecessor in title offered to enter into an agreement with defendant No.1 for the NMS1947-09 2 plot of land more particularly set out in the plaint. The Corporation accepted the offer of the predecessor in title and entered into an agreement with him. While it is true that the first defendant was required to hand over vacant possession of the plot and plaintiff’s predecessor in title was required to construct structures but the agreement states that there would be certain pre-requisites to be complied with before physical possession could be taken by the plaintiffs’ predecessors. Unfortunately, he expired in October 1975 and, thereafter, the plaintiff has been pursuing the matter. Further, on the own showing of the plaintiff on 10th September 1980, he stated in writing that he was not ready to take over the possession on as is where is basis and the first defendant must hand over vacant and peaceful possession of the same. 3] From 1980 till the show cause notice was issued on 4th October 2009, no steps have been taken by the plaintiff to pursue the rights conferred in its favour or in favour of plaintiff’s predecessor. It may be that the plaintiff’s name is entered in the records and therefore, the NMS1947-09 3 agreement was sought to be terminated by the show cause notice of 4th October 2005. The show cause notice and the ultimate termination following the same is impugned and the rights in the property claimed by filing this suit in the year 2009. Prior thereto, there may have been writ petitions filed to claim the reliefs as set out therein, particularly seeking information under the RTI Act 2005. However, the plaintiff has approached this Court after considerable delay. It cannot be said at this stage that the termination by the BMC of the agreement because, the plot was encumbered partly by its tenants and partly by hutment dwellers, can be said to be so patently illegal so as to interfere and stall further exercise undertaken by the BMC. 4] The argument is that BMC could not have resorted to Regulation 33(7) of the D.C.Rules for it is only in respect of old building belonging to BMC and constructed prior to 1940 that this regulation would apply is the submission. However, that need not detain me because examining such contentions at the instance of the plaintiff who has approached the Court belatedly for discretionary and NMS1947-09 4 equitable reliefs is not necessary at this stage. The plaintiff cannot complain that the BMC has illegally terminated the agreement because he himself did nothing after his name was entered in the records till 2005. 4] For all these reasons, the notice of motion fails and it is accordingly dismissed. (S.C.DHARMADHIKARI, J)