1 SNS IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO.266 OF 2010 WITH CIVIL APPLICATION NO.149 OF 2010 Darshan Co-operative Housing Society Ltd. ..Applicant. v. The M.C.G.M. ..Respondent. WITH APPEAL FROM ORDER NO.75 OF 2010 WITH CIVIL APPLICATION NO.81 OF 2010 WITH CIVIL APPLICATION NO.121 OF 2010 M/s. Conwood Ashish Associates ..Appellant. v. Darshan Co-op. Housing Society Ltd. ...Respondent. WITH APPEAL FROM ORDER NO.1187 OF 2009 WITH CIVIL APPLICATION NO.82 OF 2010 IN CIVIL APPLICATION NO.1486 OF 2009 Conwood Construction & Developers Pvt. Ltd. ..Appellant. V Darshan Co-op. Hsg. Society Ltd. & Ors. ...Respondents. 2 WITH APPEAL FROM ORDER NO.1278 OF 2009 M/s. Estate Investment Company Pvt. Ltd. ...Appellant. v. Darshan Co-operative Hsg. Society Ltd. And Ors. ...Respondents. Mr. Sujeet G. Kurup and Shivaji P. Yadav, advs., for the Applicant and R.No.1 in A.O.Nos.75/2010 and 1278/2009. Smt. K.K.Soran, adv. For the M.C.G.M. Shri Prasad Dani a/w D.V.Deokar and Pinakin Modi i/by M/s.Parimal K. Shroff and Co., advs. For the R.No.4. Shri Ankit Lohia i/by M.L.Chaturvedi, advs. For the appellant (in A.O.No.75/2010) Ms Jyoti Sinha i/by M/s Negandhi Shah and Himayatullah, advs. For the appellant (in A.O.No.1278/2009). CORAM : J.H.Bhatia, J. DATE : 6TH October, 2010 P.C.: 1 Heard the learned counsel for the parties. Suit No.987 of 2009 was filed by Darshan Co-operative Housing Society Limited against the Municipal Corporation, Greater Bombay and others including Conwood Construction and Developers Private Ltd. The plaintiff had taken out notice of motion no.1829 of 2009 for certain reliefs. The trial Court had granted prayer clauses (a), (b) and (c) due to which developers were restrained from creating third party interest and from handing over possession of the flats to such purchasers. The 3 Developers were also restrained from making construction of the swimming pool, which is still in progress on the building being newly constructed. Prayer clause (d) for appointment of commissioner for making inspection was not allowed. Being aggrieved by the order of the trial Court not granting prayer clause (d), revision application has been filed by the original plaintiff. Appeals against orders have been filed by the developers and owners of the land. 2 It appears that the original developers made a statement before the trial Court that construction of the building was completed and 48 purchasers and 2 licensees were already given possession. Before this Court, Conwood Ashish Associates, who claims to have come in picture as a developer at a later stage, in view of the contract with the original developer, also made similar statement before this Court. It is also stated that only a small work is required to be done to complete swimming pool in the said building and no purpose will be served by stopping completion of that swimming pool. The learned counsel for the parties agree that this Court may dispose off the revision application, appeals and all the applications without giving any reasons. Therefore, I propose to pass the following order: (i) Conwood Ashish Associates, if they so desire, may make an 4 application before the trial Court to be impleaded as defendant in the suit and if such application is moved, the trial Court shall pass an appropriate order after hearing plaintiff and other parties. (ii) The incomplete construction of the swimming pool shall be allowed to be completed and it shall be subject to the result of the suit. (iii) The creation of the third party interest and handing over possession of the flats to 50 persons as stated by the developer shall also be subject to the result of the suit. (iv) The trial Court shall appoint some senior engineer from the B.M.C. , who is not connected with the sanction of any of the plans of the developers in respect of this property and who is not posted in the ward where this property is situated, to make inspection of the complete property to verify and find out whether builders and developers have made disputed construction in violation of the requirement of 15% land to be reserved for recreation ground and whether the disputed construction is on the land, which was reserved for the recreation ground in the original sanctioned plan. Initially, the cost of the Commissioner shall be paid by the plaintiff. However, it shall be cost in the suit. Both the parties shall be allowed to keep present their own architects also at the time of inspection by the Court 5 Commissioner. Court Commissioner shall submit detail report with map before the trial Court by the end of January, 2011. In case, the disputed construction is found illegal and is required to be demolished, builders thereof shall be responsible for all the consequences including compensation to the purchasers of the said flats. In case, there are any flats in the disputed building, which are not disposed off so far and also two flats in respect of which leave and license agreement is entered into, shall not be disposed off pending the suit. (v) The trial Court shall proceed with the disposal of any other applications and suit as per law and on its own merits without being influenced by this interim order or by any observations made by the trial Court in the impugned order. 3 The revision application, Appeals against Orders as well as civil applications therein stand disposed off accordingly. (J.H.BHATIA, J.) 6