1 903.wp8913.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8913 OF 2011 Vipul Dharod & ors. ....Petitioners. Vs. Sion Kamgar Co-op. Hsg. Soc. Ltd. & Anr. ....Respondents Mr. S.M. Khaire, Advocate for Petitioners. Mr. P.J. Thorat, Advocate for Respondent No. 2. CORAM:- GIRISH GODBOLE, J DATED:- NOVEMBER 11, 2011 P.C. 1. Heard Mr. Khire, Advocate for the Petitioners and Mr. Thorat, Advocate for Respondent No. 2. 2. By an interim Application filed in dispute under Section 91 of the M.C.S. Act 1960, the Petitioners were seeking interim relief of injunction and Court Receiver in respect of flats located in building wing “F”. In companion proceedings to which the Petitioners had earlier sought to intervene, the developer has filed an affidavit giving a chart showing the names of the persons who, according to the developer, had agreed to 2 903.wp8913.11 purchase various tenements in wing “F” of the building. None of those persons have been impleaded as parties in the dispute. The relief of injunction or appointment of Court Receiver would certainly affect such third parties adversely. Present Petitioners have filed individual disputes under section 91 of the Act being Dispute Nos. 551 of 1987 and other connected disputes as indicated in paragraph-7 of the plaint in the present dispute. Petitioners claim that they are allottees of flat Nos. D-1 to D-3, D-32, D-51 to D-53 and D-61, all of which are situated in “D” wing of the Society. It is unfortunate that the said disputes are not decided despite passage of almost 24 years. However, that by itself cannot be a justification for granting interim relief in respect of the flats situated in “F” wing, particularly when the persons who are third parties in whose favour some interest is alleged to have been created by Respondent No.2 Developer are not before the Court. 3. The learned Counsel submits that the observations made by the Trial Court in respect of the locus of the Petitioners to file a dispute only in respect of the flats in “D” wing by interpreting the order dated 19/1/2009 passed in Writ Petition No. 2838 of 2008 and other connected Writ Petitions are not justified. He may be right to some extent. Prima 3 903.wp8913.11 facie the said observation of the Trial Court is incorrect and this Court, after having stayed the impugned resolution expelling the Petitioners could not have imposed restriction on the Petitioners from adopting a remedy available to them in law by filing a dispute and could not have held that the dispute can be filed only in respect of their respective flats allotted to them in “D” wing. In fact no such restriction has been imposed and the Petitioners were entitled to file the present dispute to safeguard their rights. 4. However, merely on account of such an error which has not adversely affected ultimate conclusion regarding existence of prima facie case, balance of convenience and irreparable loss, it is not necessary to entertain this Writ Petition. 5. The impugned resolutions were passed on 18/4/2002 and 25/4/2002 and the impugned development agreements were executed on 1/1/2005 and 22/5/2007 whereas the dispute has been filed in the year 2010. It is not in dispute that the construction of building “F” had already been substantially completed. Mr. Khaire further contended that the MCGM had issued stop work notice and occupation certificate was not issued and hence according to Mr. Khaire, the persons who are stated to be the 4 903.wp8913.11 alleged purchasers of the flats in “F” wing cannot be held to be in possession. The question whether the possession, if any, to the third party allottees/purchasers of the flats in wing “F” is given contrary to the provisions of the M.M.C. Act, 1888 or MRTP Act, 1966 is a matter which is not relevant for this dispute. The developer had contended that he has handed over possession. If any irregularity is committed contrary to the provisions of M.M.C. Act, 1888 and MRTP Act, 1966, the Authorities under the said Act will be free to take whatever action, as may be available in law and the dismissal of the application for interim relief in the dispute or the Misc. Appeal or even this Writ Petition would not come in the way of the Planning Authority namely MCGM from initiating and taking appropriate action under the MRTP Act, 1966 or the MMC Act, 1888. However, for the purpose of the dispute under section 91, prima facie, such third parties would be necessary parties as their rights are likely to be affected. In my opinion, Trial Court and the Appellate Court were justified in declining the relief on the ground that the said parties had not been impleaded. 6. In my opinion, no error of jurisdiction or error of law has been committed by the Trial Court and the Appellate Court at an interlocutory 5 903.wp8913.11 stage. It is obvious that all observations made by the Trial Court and the Appellate Court are only prima facie observations and will not bind either of the parties or the Trial Court and Appellate Court when the dispute is finally heard or the appeal from the said dispute, if any, is heard and decided. 7. Mr. Khaire had also sought to contend that after filing of the dispute, according to the Petitioners, the administrator had been appointed who had allegedly revoked 2 resolutions which are impugned in the present dispute. If this be a subsequent development, it is always open to the Petitioners to file a separate application for similar interim relief in accordance with law and provisions of Order 39(4) of the Code of Civil Procedure, 1908 on the ground of change of circumstances. If such an application is filed, the same will have also to be decided on its own merits without being influenced by the order of the Trial Court or Appellate Court or this order. So also the Petitioners will also be at liberty to file an appropriate application for amendment of the dispute for impleading third parties and for interim relief, if they so desire and if any such application is filed, the same has to be dealt with in accordance with law and on its own merits. 6 903.wp8913.11 8. The original disputes filed by the Petitioners are unfortunately pending for more than 24 years. In the facts of this case, I deem it proper to direct the learned Judge of the Co-operative Court No. II to expeditiously hear and decide the said Dispute Nos. 551/87, 552/87, 558/87, 562/87, 563/87, 564/87 and 565/87 as expeditiously as possible and in any case on or before 30/6/2012. 9. Subject to the above clarification contained in paragraphs 5, 6 and 7 namely that the observations are only prima facie observations and the dismissal of the Writ Petition will not preclude the M.M.C. from taking appropriate action, and the direction in paragraph-8 for expediting the earlier disputes; this Writ Petition is summarily dismissed. (GIRISH GODBOLE, J)