ssp 1 CAW 870 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.870 OF 2011 IN WRIT PETITION NO.1009 OF 2007 Chembur Amar Jyoti Co-operative Housing Society Ltd. .....Applicant versus Sai Prakash Dutt and Ors. ..... Respondents Mr.Mayur Khandeparkar with Mr.K.S.Vardhan and Ms.Sapna Rachure i/by M/s.T.N.Tripathi & Co., for the applicant. Mr.Kishore Tembe, for respondent Nos.3(a) 3(b) and 5. Mr.Rupesh R. Lanjekar i/by Mr.A.G.Damle, for respondent No.1. Mr.Sunjay Dutt, respondent No.4 party-in-person present. CORAM: RANJIT MORE, J. DATE: 06th MAY, 2011 P.C. : 1. The respondent No.1 is the original petitioner and respondent Nos.3 to 5 and the present applicant are the respondents in the above writ petition. The petition arises out of a dispute filed by the respondent No.1 in the Co-operative Court. The dispute was filed against respondent No.3 to 5 and the present applicant for delivery of possession of flat situated in applicant’s society. The respondent No.1 is a member of the said society. The dispute came to be dismissed on the ground that respondent Nos.3 to 5 are not the members of the applicant society and therefore, Co-operative Court has no jurisdiction under the provisions of ssp 2 CAW 870 of 2011 Section 91 of the Act. This order is confirmed by the Co-operative Appellate Court. The respondent No.1 thereafter filed a Writ Petition which is admitted and pending for final disposal. 2. In the meanwhile, the building of the applicant Society being dilapidated, the applicant proposed to redevelop the said building. Accordingly, resolution was passed and the redevelopment work is given to one M/s.BSD Infrastructure Pvt. Ltd. Respondent Nos.3(a), 3(b) and 5 are in possession of the flat in question of the society’s building, which is the subject matter of the aforesaid writ petition. On 28-06-2007, this Court has passed following order in the aforesaid writ petition. “1. Heard Advocates appearing for the parties on the prayer for interim relief. The Advocate for the petitioner states that though the first Respondent has expired, her heirs are already on record in another capacity. 2. Considering the facts and circumstances of the case, interim relief in terms of prayer clause (b) deserves to be granted, save and except the words “dealt with” which are already bracketed”. 3. The prayers made in the above writ petition, reads as under: a) This this Hon’ble Court be pleased to call for record and proceedings in Appeal No.69 of 2006 before the Co- operative Appellate Court and after examining the legality and propriety be pleased to quashed and set aside order dated 14th November, 2006 in Appeal No.69 of 2006 and order dated 16th March, 2006 in Dispute No.1109 of 1992. (b) that pending the hearing and final disposal of the ssp 3 CAW 870 of 2011 present petition, the respondents be restrained by an order of injunction from selling, disposing or, dealt with or creating any third party interest in respect of flat No.4 situated in the Society of the respondent No.5. c) that ad-interim reliefs in terms of prayer clause (a) and (b) above be granted. d) for such other and further reliefs as this court may deem fit and proper be granted; e) cost of the Notice of Motion be provided for; 4. In the above circumstances, the present application is filed for the modification of the order dated 28-06-2007 so as to enable the applicant’s society to redevelop the dilapidated building. I have heard the learned counsel for the applicant, respondent No.1, respondent Nos.3(a), (b) and 5 and respondent No.4 in person. Learned counsel for the respondent Nos.3(a) (b) and 5 have no objection for the redevelopment of the applicant’s Society building. Respondent No.4 party-in person also states that he has also no objection if the said building is redeveloped. Respondent No.1 however, states that he is not agreeable for modification of the order dated 28-06-2007. 5. Admittedly, the respondent N.1 is not in possession of flat No.4. He is a member of the applicant’s society and is a party to the resolution passed in the General Body Meeting, in which applicant’s Society undertakes redevelopment of its building. As already stated above, other respondents have no objection. The Deputy Registrar has also ssp 4 CAW 870 of 2011 approved and consented the resolution passed in the General Body Meeting on 29-03-2009. The respondent Nos.3(a), 3(b) and 5 have alredy given consent letters. 6. In this backdrop, the applicant Society is allowed to redevelop the said building. The civil application is disposed of by passing the following order :- 1) Keeping the rights of the parties intact, to be decided in the Writ Petition, the order dated 28th June, 2007 be modified as under : - (i) Respondent Nos. 3 (a), 3 (b) , 4 and 5 shall hand over vacant and peaceful possession of the said flat to the Court Receiver, High Court, Bombay within 4 weeks from the date of receipt of intimation from the Applicant Society that IOD in respect of the redevelopment of the property of the Society has been obtained and the Court Receiver, High Court, Bombay, in turn, shall hand over the said flat to the Applicant Society within a week therefrom. (ii) In case of default by the Respondent Nos. 3(a), 3 (b), 4 and 4 to deliver possession of the said flat as aforesaid, the Court Receiver, High Court, Bombay, shall take forcible physical possession of the said flat from the Respondent Nos. 3 (a), 3 (b), 4 and 5 or any other person found in ssp 5 CAW 870 of 2011 possession and/or occupation thereof, if necessary, with the help of police and hand over possession of the same to the Applicant Society for redevelopment. (iii) The Applicant Society shall proceed to develop the property through the Developers as per the terms of the Development Agreement dated 19th July, 2010 and shall hand over newly constructed flat being flat No. 2 in lieu of the said flat to the Court Receiver, High Court, Bombay, within one week from the date of issuance of Occupation Certificate and the Court Receiver, High Court, Bombay shall hand over the said newly constructed flat to Respondent Nos. 3 (a), 3 (b), 4 and 5 within one week therefrom and upon such handing over of possession of the newly constructed flat to Respondent Nos. 3 (a), 3 (b), 4 and 5, Court Receiver, High Court, Bombay shall stand discharged upon payment of costs and charges and expenses by the Applicant Society. 2. Rs. 3,08,000/- (Rupees Three Lakhs Eight Thousand only) being rent/licence fees for temporary alternate accommodation, Rs. 14,000/- (Rupees Fourteen Thousand only) being brokerage and Rs. ssp 6 CAW 870 of 2011 10,000/- (Rupees ten thousand only) being transportation/shifting expenses in respect of the said flat shall be paid to Respondent Nos. 3 (a), 3 (b), 4 and 5 in the manner and as per the schedule set out in clause 4 of the Development Agreement dated 19th July, 2010. 3. Rs. 3,53,342/- (Rupees Three Lakhs Fifty Three thousand Three Hundred Forty Two only) being compensation for hardship and inconvenience in respect of the said flat, shall be deposited in the office of this Hon’ble Court before the Applicant Society seeks possession of the said flat from the Court Receiver, High Court, Bombay. In the event of the deposit of the said amount, the Registrar shall invest the same in a Nationalized Bank initially for a period of one year. 4. M/s. D.S.D. Infrastructure Pvt. Ltd. the Developers of the property of the Applicant Society shall file an undertaking within a period of four weeks from today with an advance copy to the Applicant Society and Respondent Nos.3(a), 3(b), 4 and 5 that payments on account of hardship and inconvenience, rent/licence fees for temporary alternate accommodation, brokerage and transportation/shifting expenses in respect of the said flat shall be paid in the manner and as per the Schedule set out in Clause 4 of the Development Agreement dated 19th July, 2010. ssp 7 CAW 870 of 2011 5. Pending the hearing and final disposal of the present writ petition, Respondent Nos.3(a), 3(b), 4 and 5 shall not sell, dispose off or create any third party interest in respect of the said flat or the newly constructed flat being Flat No.2 in lieu of the said flat. ( RANJIT MORE, J. )