1 srk nm-783-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.783 OF 2011 IN APPEAL NO.174 OF 2011 IN NOTICE OF MOTION NO.1662 OF 2010 IN SUIT NO.842 OF 1980 IN PAUPER PETITION NO.8 OF 1979 Abu Sufiyan Rahimulla Shaikh and others. ... Appellants Versus Smt. Nishat Ara widow of Khurshidali Mansoorali and others. ... Respondents Mr.Girish Godbole with Mr. B.P. Pandey i/by Mr. Vivek B. Pandey for the appellants. Mr. Vineet Naik i/by Mr. Nandlal Kothari Sabir for defendant Nos.1-b (a to d) and 1(c) to 1(e). Mr. R.A. Dada, Senior Advocate with Mr. Behram Shroff i/by M/s. Taher & Co. for defendant Nos.2(a) to 8. Mr. N.V. Walawalkar, Senior Advocate with Mr. Chandra Naik i/by M/s. Chandra Naik & Associates for respondent No.9. CORAM : MOHIT S. SHAH, C.J. & D,G.KARNIK J. Thursday, March 24, 2011 P .C. Heard the learned counsel for the parties. 2. This notice of motion is in appeal challenging the order dated 4th February, 2011 of the learned trial Judge in Notice of Motion No.1662 of 2010. The learned trial Judge has passed the impugned order in a suit for administration of the estate of one Haji Riyaz Ali who expired on 20th August, 2 srk nm-783-11.sxw 1978 leaving behind two wives and no issues. The suit is being prosecuted and defended by certain collaterals, sharers and residuaries. 3. The appellants herein-original plaintiffs have claimed 1/4th share in all the properties of the deceased including the property which is the subject matter of this appeal. The appellants-plaintiffs had applied for determination of such share and payment of such share in the suit. 4. According to the defendants, i.e. heirs of the deceased other than the appellants-plaintiffs, the plaintiffs' share in the suit properties is only 1/8th. 5. One of the defendants took out notice of motion No.1662 of 2010 in respect of one of the many properties left by the deceased. 6. The learned trial Judge has given the finding that the property, which is subject matter of the appeal, is a large building consisting of ground plus four upper storeys. It is fully tenanted. There are as many as 49 tenements. The building is dilapidated and in urgent need of repairs/reconstruction. 73% of the tenants of the building have consented to redevelop the property through respondent No.9 who is a developer. The defendants are also agreeable that the building in question be redeveloped by respondent No.9 developer in whose favour 73% of the tenants have given their consent. 7. The learned trial Judge has passed the following order in the notice of motion: 1. The tenants through the Respondents, or any other developer as required by them would be entitled to redevelop the aforesaid property as per the procedure prescribed by law. 3 srk nm-783-11.sxw 2. The NOC of the parties to that extent shall be considered to be given as permitted by this Court. 8. Mr. Girish Godbole, learned counsel for the appellants-plaintiffs has submitted that the learned trial Judge erred in passing the impugned order because the parties shares in the suit properties have yet to be determined and even a preliminary decree is not passed. Hence, at this stage, the tenants could not have been permitted to redevelop the property as per their choice. Ultimately, if at the trial of the suit, plaintiffs are held to have 1/4th share in the suit property and the building which is the subject matter of this appeal comes to the appellants-plaintiffs' share, it would be for the appellant-plaintiffs to decide as to how they would deal with the property. However, they may not choose to redevelop the property and simply get it repaired through MHADA or other agency. It is further contended that the appellant-plaintiffs are required to give up all their rights in the suit property which could not have been done by an interlocutory order of the learned trial Judge. Mr. Godbole has also raised various legal contentions indicated hereinafter. 9. Mr. R.A. Dada, learned senior counsel for the other heirs of the deceased has supported the order of the learned trial Judge and submitted that 1/8th share holder in the suit properties cannot hold the other sharers and the tenants to ransom, when the property requires urgent redevelopment. It is submitted that when the entire building is tenanted with as many as 49 tenements and 73% of the tenants have agreed to have the property redeveloped through respondent No.9 who was also entered agreement with the other heirs of the original owner (since deceased) having 7/8th share in the 4 srk nm-783-11.sxw property and in any case, even according to the plaintiffs', the defendants have 3/4 share, no interference with the order of the learned trial Judge is called for and the same need not be stayed during pendency of the appeal. 10. The learned counsel for respondent No.9 developer states that since the property is valued at Rs.1,53,36,000/- for the plot area 7668 sq.ft., at the highest even if the appellant-plaintiffs succeed in the suit, the plaintiffs would be entitled to get less than Rs.40 lakhs and that respondent No.9 is, therefore, prepared to deposit the plaintiffs' share. In any case, since the tenants are ready for redevelopment of the property, respondent No.9 is also prepared to give an undertaking that out of the property to be redeveloped, respondent No.9 shall not sell 49 tenements which are to be allotted to the tenants on ownership basis as per the redevelopment agreement. It is further submitted that even if the appellant-plaintiffs do not accept the valuation of the property, in order to protect the interest of the appellant-plaintiffs, respondent No.9 is prepared to deposit a sum of Rs.1 crore. Whatever share the plaintiffs are able to establish in the suit properties, the plaintiffs will be able to recover from the said deposit. 11. The learned counsel for respondent No.9 further states that apart from making allotment of the 49 tenements to the tenants subject to the result of this appeal as far as free sale component is concerned, in lieu of deposit of rupees one crore, respondent No.9 is prepared to undertake that respondent No. 9 shall not sell, transfer and allot or part with possession of 25% of the free sale component either for commercial purposes or for residential purposes till the final disposal of the appeal. 5 srk nm-783-11.sxw 12. We may now only indicate the various legal contentions raised by Mr. Godbole, learned counsel for the appellant-plaintiffs. It is submitted that in view of the provisions of sections 88 to 93 of the MHADA Act and the provisions of Maharashtra Rent Control Act as well as the Development Control Regulations 33.7 and the provisions of the Maharashtra Regional Town Planning Act, the tenants have no right to redevelop the property on their own without the consent of the co-owners in the property. Reliance is also placed by Mr. Godbole on the decision of the Apex Court in Cotton Corporation of India Limited v. United Industrial Bank Limited and others, (1983)4 SCC 625 and particularly, the following principles laid down in para 10 of the judgment: "10................ It is indisputable that temporary injunction is granted during the pendency of the proceeding so that while granting final relief the court is not faced with a situation that the relief becomes infructuous or that during the pendency of the proceeding an unfair advantage is not taken by the party in default or against whom temporary injunction is sought. But power to grant temporary injunction was conferred in aid or as auxiliary to the final relief that may be granted. If the final relief cannot be granted in terms as prayed for, temporary relief in the same terms can hardly if ever be granted. In State of Orissa v. Madan Gopal Rungta a Constitution Bench of this Court clearly spelt out the contours within which interim relief can be granted. The Court said that `an interim relief can be granted only in aid of, and as ancillary to, the main relief which may be available to the party on final determination of his rights in a suit or proceeding'. If this be the purpose to achieve which power to grant temporary relief is conferred, it is inconceivable that where the final relief cannot be granted in the terms sought for because the statute bars granting such a relief ipso facto the temporary relief of the same nature cannot be granted." 13. The above contentions based on the provisions of the four statutes will be dealt with in detail at the final hearing of the appeal but suffice it to 6 srk nm-783-11.sxw state that plaintiffs who, according to their own case, have only 1/4th share in the property are seeking to restrain the holders of the remaining 3/4th share or the holders of 7/8th share of the property of the defendants from redeveloping the property which is tenanted with as many as 49 tenements who have already consented that the property be redeveloped by respondent No.9. This is not a case where all the co-owners are against the redevelopment of the property and the Court is passing an order only at the instance of the tenants and in the teeth of opposition by all the co-owners. 14. In our view, the interim order passed by the learned trial Judge as modified by this order is not inconsistent with the final reliefs which may be granted in a suit for administration of estate of the deceased. 15. Having heard the learned counsel for the parties and having regard to the finding given by the learned trial Judge that the building is in dilapidated condition and requires urgent repairs or redevelopment and also having regard to the stand of the defendants in the suit the other heirs of the deceased having either 7/8th share or atleast 3/4th share in the estate of the deceased, and also the stand of the tenants who have agreed by 73% majority that respondent No.9 developer shall redevelop the property and the aforesaid statements coming from the learned counsel for respondent No.9 which will adequately secure the interest of the appellant-plaintiffs, we dispose of this notice of motion after recording the following statements and giving the following directions: (A) As far as respondent Nos.1 to 8 are concerned, Mr. R.A. Dada, learned senior counsel for respondent Nos. 2(a) to 8 and Mr. Chandra Naik for respondent No.9 state that their respective clients will give NOC for redevelopment of the 7 srk nm-783-11.sxw property bearing C.S.No.54 of Tardeo Division in `D' Ward, situated at Saidunnisa House (Rabunnisa Manzil), 48/50, Slater Road, Grant Road (W), Mumbai -400007 under 33(7) or 33(9) of D.C.Regulation for Greater Mumbai, 1991 through respondent No.9. (B) The respondents-defendants and the tenants will be entitled to redevelop the above property (which is the subject matter of this appeal) through respondent No.9 as per the procedure prescribed by law but refusal by the appellants-plaintiffs to give NOC for such redevelopment shall not come in the way of proposal of redevelopment being considered by the competent authority. This order is passed subject to the following conditions: (i) Respondent No.9 will file undertaking that 49 tenements will be earmarked only for the tenants and that the tenements will be allotted to 49 tenants subject to the result of this appeal. (ii) Respondent No.9 shall also file, within ten days from today, an undertaking that 25% of the free sale components in the building for commercial purposes as well as building for residential purposes shall not be sold, transferred, allotted nor their possession shall be parted with, till final disposal of the appeal. 8 srk nm-783-11.sxw 16. At this stage, Mr. Godbole, learned counsel for the appellant- plaintiffs prays for stay of operation of this order for 12 weeks. The learned counsel for the respondents oppose the above prayer and submit that since the building is dilapidated and 25 families have already vacated and shifted to the private accommodation and part of the building has collapsed, his prayer for stay may be rejected. 17. Having heard the learned counsel for the parties and in view of the facts and circumstances of the case, the request for stay of operation of the order is rejected. CHIEF JUSTICE D.G. KARNIK, J.